Court File and Parties
Date: April 27, 2020
Court File No.: D56415/12
Ontario Court of Justice
Between:
C.L.B. Acting in Person Applicant
- and -
A.J.N. Acting in Person Respondent
Heard: April 23, 2020
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The respondent (the father) is the custodial parent of the parties' 12-year-old son (the child). He has brought a motion to suspend the applicant's (the mother's) face-to-face parenting time with the child, such order to be reviewed in 30 days. He feels that the child is medically vulnerable and that the mother will not adequately follow COVID-19 health protocols. The father proposes to make up the mother's lost time with the child once the COVID-19 pandemic (the pandemic) is over and to provide her with daily video contact in the meantime.
[2] The operative court order, dated July 24, 2015 (the existing order) provides that the child shall spend all but one weekend each month with the mother as well as an overnight with her on the second Thursday of each month. It also provides for extensive holiday parenting time for each parent.
[3] The mother has not had face-to-face contact with the child since March 13, 2020. She asks that her parenting time be restored and that the court give her make-up time for the time she has missed.
[4] The issues for the court to determine are:
a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child with respect to the parenting time he should have with the mother?
b) If so, in determining the best interests of the child, do the child's medical issues, combined with any concerns about the mother's ability to follow COVID-19 health protocols, warrant changing the existing parenting order at this time?
c) What, if any, make-up parenting time should the child have with the mother?
Part Two – Procedural Issues
[5] The motion was heard by teleconference.
[6] The affidavits filed by the parties were unsworn. The parties affirmed that the contents of their affidavits were true at the outset of the hearing.
[7] The court had questions for each party arising out of their material. The parties affirmed to tell the truth at the outset of the hearing.
Part Three – Brief Background
[8] The mother is 31 years old. The father is 33 years old.
[9] The parties had a relationship from 2004 to 2008. They had the one child together.
[10] The parties have litigated about the child, on and off, since 2012. The evidence filed on this motion informs the court that they have been unable to make any meaningful gains in their ability to effectively communicate with each other. They continue to make allegations of neglect against the other. The Children's Aid Society of Toronto has often been involved in their disputes.
[11] The child lived with the mother until January 2014. Since then, he has lived with the father.
[12] After a contested trial, the father was awarded custody of the child on July 24, 2015. See: C.L.B. v. A.J.N., 2015 ONCJ 404. The court subsequently ordered the mother to pay the father's costs of $7,500. See: C.L.B. v. A.J.N., 2015 ONCJ 459.
[13] The mother brought a motion to change the existing order in 2017. The motion to change was stayed on April 3, 2017 until such time as the mother paid $2,000 towards the outstanding costs order. She has not paid these costs.
[14] On June 21, 2018, the father brought a contempt motion against the mother. It was dismissed on July 25, 2018. The court ordered the father to pay the mother's costs of $500, to be set-off against the costs owed to him by the mother.
[15] On March 13, 2020, the father advised the mother that he would be suspending her face-to-face contact with the child due to the pandemic and his concerns about the child's medical vulnerability and her ability to protect him from the virus.
[16] On March 18, 2020, the father and the child both became ill. The father was advised by public health that he and the child should self-isolate for 14 days.
[17] On April 7, 2020, the father moved for permission to bring an urgent motion to suspend the mother's face-to-face contact with the child. The court granted this motion and on a temporary without prejudice basis, suspended the mother's face-to-face contact with the child pending the return of the motion. It also ordered that the mother have daily video contact with the child until the matter returned to court.
[18] Also on April 7, 2020, the mother moved for permission to bring an urgent contempt motion and a motion to change the existing order without paying the outstanding costs order. This request was dismissed on April 8, 2020, as not meeting the test for urgency, with the caveat that if the court determined after hearing the father's motion that face-to-face contact should be restored and the father did not comply with that order, she could renew her request.
[19] The mother acknowledged that, one day on the Easter weekend she picked up her sister and her nieces from her sister's home in Pickering and drove them to go shopping (they went grocery shopping, to a pharmacy and to Walmart). She did not follow physical distancing protocols.
Part Three – Legal Considerations
[20] 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 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 father.
[21] 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. Best interest factors are set out in subsection 24 (2) of the Children's Law Reform Act and have been considered by the court.
[22] 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.
[23] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.
[24] Many cases have been released in the past six weeks setting out principles for the court to consider in determining whether face-to-face contact with a parent should be suspended because of the pandemic.
[25] In Ribeiro v. Wright, 2020 ONSC 1829, Justice Alex Pazaratz set out the following:
a) 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.
b) 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.
c) 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).
d) 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.
e) 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.
f) 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.
g) 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.
h) 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.
[26] 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.
[27] It is clear that the pandemic, standing alone, is not a reason to suspend parental access, particularly where there is evidence to indicate that appropriate precautions are being taken to avoid exposure to infection. See: Thibert v. Thibert.
[28] 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.
[29] 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.
[30] Parents cannot ignore the other parent's inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local have issued public health notices dealing with preventing infection, which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. See: Balbontin v. Luwana, 2020 ONSC 1996.
[31] 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.
[32] In Vasilodimitrakis v. Homme, 2020 ONSC 2084, the child suffered from juvenile arthritis and was autoimmune compromised. At issue was whether the child could be safely transported between the two homes of the parents. The court rejected the evidence of the child's pediatric ophthalmologist concerning transportation risks, as it was beyond her area of expertise – she was neither an infectious diseases specialist nor a rheumatologist. The court preferred the evidence of the child's rheumatologist who felt that the risk of transportation to the child was minimal, provided it was done safely. The court maintained the temporary access order, finding fault with both parents in following COVID-19 health directions.
[33] In Chrisjohn v. Hillier, 2020 ONSC 2240, the child had a neuromuscular disorder with previous respiratory complications and was at increased risk of contracting COVID-19, as well as having serious complications if she contracted the virus. The family doctor recommended that the child should be kept at home during this time, with the exception of medical appointments. The court ordered access to continue as the medical letter filed did not state that the child should be kept in one home. The court was satisfied that the father would follow social distancing directives.
[34] In Trudeau v. Auger, 2020 ONCJ 197, the mother sought to suspend access alleging the child was at a higher risk due to respiratory issues. The child had been on antibiotics. The court found that the mother failed to provide medical evidence to support her allegations or which said that the child would be at risk spending a few hours each week with the father. The court reinstated access, subject to the child completing a cycle for antibiotics.
[35] In Lyons v. Lawlor, 2020 ONCJ 184, the court did not change an access order to a child with asthma. The court found that direct and compelling evidence from the child's doctor that more intensive distancing efforts were required to keep the child safe would have been required to support changing the order.
Part Four – Material Change in Circumstances
[36] The court finds that there has been a material change in circumstances affecting or likely to affect the best interests of the child that warrants an assessment of the child's best interests. The court bases this finding on a combination of reasons including:
a) The pandemic creating a need for additional safety measures to protect the child and the community.
b) The mother's history of not cooperating with the child's service providers or properly addressing the child's medical and academic needs (as set out in the July 24, 2015 decision), creating a heightened need to assess the mother's present ability to comply with health protocols.
c) The mother's failure to properly practice safe physical distancing when she drove in a car with her sister and nieces and went shopping with them on the Easter weekend, particularly since she had, just the week before, deposed in her affidavit that she was complying with all COVID-19 health protocols.
d) The child and the father having had to self-isolate for 14 days after March 18, 2020.
[37] The question that remains is whether or not the child's best interests would be better served by suspending face-to-face contact with the mother or by leaving the current parenting regime in place, with or without modification.
Part Five – The Child's Medical Condition
[38] In his affidavit filed in support of the urgent motion (the initial affidavit), the father's primary argument was that the child has a heart condition called Brugada Syndrome that places him at increased risk if he contracts the COVID-19 virus.
[39] The father attached a letter dated March 31, 2020 to his initial affidavit, from a registered nurse from the Toronto Hospital for Sick Children on behalf of the child's cardiologist. The nurse stated in the letter that the child had Brugada Syndrome which places him at increased risk for cardiac arrhythmias. She wrote that fever is a common trigger for these arrhythmias. She said that if the child develops a fever, the family has been instructed to aggressively treat and manage his fever with antipyretics at home.
[40] In its endorsement of April 8, 2020, the court asked the parties to obtain a medical report from the child's treating physician.
[41] The mother obtained and filed a report dated April 13, 2020 from Dr. Robert Hamilton, the child's cardiologist at the Hospital for Sick Children.
[42] Dr. Hamilton wrote the following:
a) The child does not meet the definition for Brugada Syndrome at this time.
b) It is hard to diagnose Brugada Syndrome in children.
c) The child carries a gene variant that may or may not be associated with Brugada Syndrome. He has a 50% chance of developing Brugada Syndrome at some point.
d) For children being followed for risk of Brugada Syndrome, precautionary measures are advised around fevers and treating fever aggressively, as well as a yearly follow-up clinic appointment.
e) The risks to the child remain very low, and he does not consider that the child should be treated any differently than normal children – there is no serious or immediate concern due to the child's predisposition to Brugada Syndrome.
f) In his opinion, custody or access decisions, even in this time of the COVID-19 pandemic, should not be treated any differently for the child because of his predisposition to Brugada Syndrome than for a normal child.
[43] To his credit, in his subsequent affidavit filed for this motion (the second affidavit), the father acknowledged that based on the letter from Dr. Hamilton, it was clear the child does not have a Brugada Syndrome diagnosis and that he is at low risk.
[44] The court finds that the child's medical condition is not a basis to suspend his face-to-face contact with the mother.
Part Six – The Ability of the Mother to Comply with COVID-19 Health Directives
[45] In his second affidavit and in his submissions, the father focused instead on his argument that the mother could not be trusted to follow COVID-19 health directives, placing the child at an unacceptable risk of harm.
[46] The father gave as an example that the mother had asked to take the child to church on March 13, 2020. He did not give her the child.
[47] The mother explained that she was unaware that going to church during the weekend of March 13th was contrary to public health directives. This was a reasonable explanation. At that time, public health directives were new, developing and changing rapidly. She explained that her church has been closed since March 20, 2020 and that she has no intention of taking the child to church until the pandemic is over.
[48] The father also said that the mother breached COVID-19 health protocols by banging on his front door on March 17, 2020. This happened when the mother wanted to see the child because the father was denying her face-to-face parenting time. The mother could have handled the situation better, but the court does not view this as a serious breach of health protocols.
[49] In his second affidavit, the father raised additional concerns about the mother following COVID-19 health protocols. He alleged that one day on the Easter weekend the mother had her sister and the child's three cousins over to her home. The mother denied this allegation but conceded that she did take her sister and her sister's two children shopping one day on the Easter weekend. She drove her sister and her nieces in her car. She said that everyone was wearing N-95 masks the entire time and that she thoroughly washed her hands when she returned home.
[50] This is of some concern. The mother did not follow COVID-19 health protocols by driving in a car with her sister and her nieces and going shopping with them without safe physical distancing.
[51] The mother assured the court that she would not do this again. She says that both she and her sister are now using on-line services that deliver food to their respective homes.
[52] The father also alleged that one of the child's cousins came to the mother's home on April 21, 2020. At the hearing, he was less sure of this date. The mother denied that this happened.
[53] The father heavily relied on the court's trial findings on July 24, 2015 in support of his claim that the mother would not follow COVID-19 health protocols.
[54] The trial findings raised concerns about the mother's judgment including:
a) She had neglected the child's dental needs.
b) She was not responsive in dealing with the child's doctor to monitor his heart.
c) She was responsible for the child's poor school attendance.
d) She was not reliable in picking up the child from school.
e) She did not provide, at times, adequate lunches and winter clothing for the child.
f) Her neglect contributed to the child's school struggles. Yet, she was resistant to social work assistance suggested by the school.
g) The school had difficulty contacting her.
h) Her neglect of the child's needs resulted in referrals to the Children's Aid Society of Toronto.
[55] The court has taken these findings into consideration. However, the court has also considered that these findings were made almost five years ago and don't necessarily reflect how the mother would follow health protocols today.
[56] The mother testified that she is living in a two-bedroom apartment with two bathrooms. She said that she lives on her own and that the child has his own room when he resides with her.
[57] The mother deposed that she had just begun a start-up business before the pandemic and that she now only works from home.
[58] The mother testified that, with the exception of the Easter shopping incident, she has practised strict physical distancing since March 18, 2020 (she told the court that a friend had visited her twice at her home the week before). She said that she has not seen her mother since March 13, 2020. She deposed that she is following other health protocols such as frequently washing her hands and wearing a mask during the infrequent times that she leaves her home.
[59] The mother told the court that she will follow all COVID-19 health protocols if her face-to-face contact with the child is restored.
[60] The mother told the court that she has gone to the child's annual cardiology appointments since 2016. She accurately stated in her first affidavit that the child had not been diagnosed with Brugada Syndrome.
[61] The mother also provided evidence that she is in communication with the child's school about his academic needs.
[62] The court finds that the father did not establish that the mother will not properly follow COVID-19 health protocols for the following reasons:
a) The mother demonstrated to the court an appropriate understanding of these health protocols.
b) Aside from the Easter shopping lapse, the mother has followed safe physical distancing and other health protocols.
c) The mother lives on her own and works from home reducing the child's risk of contracting the virus.
d) The mother has a car and can transport the child for exchanges, reducing the child's exposure to the virus.
e) The mother has been involved more responsibly in the child's medical care and schooling since July 24, 2015.
f) There is no evidence that the mother would not follow the fever management directions for the child set out by Dr. Hamilton.
g) The mother's admission during the hearing that she saw a friend twice during the week of March 13, 2020 actually gives the court more confidence in her ability to follow court direction. The father did not know about these visits and the mother voluntarily provided this information to the court at the hearing, to her potential detriment. The mother also voluntarily provided detail about her shopping with her sister and nieces at the hearing and did not attempt to minimize this. This is not something that the mother would have done in 2015. It demonstrates growth.
Part Seven – Best Interests Determination
[63] The father acknowledged that the child's relationship with the mother is very important to the child and that the child would benefit from spending more time with her.
[64] The mother is very involved in the child's life and has a close relationship with him.
[65] The child has already gone 6 weeks without face-to-face contact with the mother. The child needs the guidance of both parents to help him through this difficult time.
[66] There are some concerns about the mother's ability to follow health protocols. However, they do not rise to the level where it is in the child's best interests to radically alter the existing parenting arrangement for at least another month, as suggested by the father, and prevent the child from being with the mother.
[67] The court finds that it is in the child's best interests to restore the parenting order set out in the existing order with some minor modifications to address the COVID-19 health issues.
[68] The court is aware that public health directives are frequently changing. The court will adopt the approach taken by 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. There should be no repeat of the Easter shopping incident.
[69] Since exchanges cannot take place at school, for the time being the exchanges shall take place in the lobby of the father's apartment.
Part Eight – Make-up Time
[70] The mother has not had her weekend parenting time with the child since March 13, 2020. She seeks make-up time. She suggested that her weekend visits be extended for one day on each of her weekends with the child. The father suggested that any missed time be made up in the summer.
[71] The court prefers the mother's suggestion. This leaves the question of how much parenting time should be made up.
[72] Pursuant to the existing order, the mother has missed 10 nights of weekend overnight parenting time and one Thursday overnight. However, several of those visits did not take place for legitimate health reasons.
[73] The court accepts the father's evidence that both he and the child experienced health symptoms on March 18, 2020 that necessitated the father contacting Toronto Public Health for directions. He was advised, based on his descriptions, that it was unlikely that either he or the child had the COVID-19 virus, but that they should self-isolate for 14 days. He was advised not to go to a testing centre. The father responsibly advised the mother what he was told to do. The father followed up by calling Ontario Telehealth on March 21, 2020 and received similar advice. This meant that face-to-face contact with the mother needed to be suspended until April 1, 2020.
[74] The mother's choice to go Easter shopping with her sister and nieces also meant that a sufficient period of time needed to pass before the child could safely come to her home. The father should not be required to provide the mother with make-up time for this choice.
[75] The court will grant the mother an additional day of weekend access for her next four weekend visits to make up for parenting time lost not related to health reasons.
Part Nine – Conclusion
[76] An order shall go on the following terms:
a) The April 8, 2020 order is terminated.
b) The parties shall comply with the parenting terms set out in the July 24, 2015 order, as modified by the terms set out below.
c) The mother's parenting time shall resume on Friday, May 1, 2020.
d) For her next four weekend visits, the mother's parenting time shall be extended until the Monday at 6 p.m.
e) The mother shall transport the child for parenting exchanges for so long as school remains closed. The exchanges shall take place in the lobby of the father's apartment building, or such other location they agree to.
f) 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.
g) Both parties will follow government orders and requirements as set out and as updated here:
h) The parties shall follow the directions given for fever management for the child set out by Dr. Hamilton in his April 13, 2020 letter and immediately let the other party know if the child has a fever and how they are managing it.
[77] 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.
[78] This does not appear to be a case for costs. However, if she chooses to do so, the mother may serve and file written costs submissions by May 11, 2020. The father will have until May 21, 2020 to file a written response. The submissions should not exceed two pages, not including any offer to settle.
[79] In 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.
[80] The court thanks both parties for the civil manner in conducting themselves during the hearing.
Justice S.B. Sherr
Released: April 27, 2020
