COURT FILE NO.: 50350-15 DATE: 2020-03-26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DWIGHT COOPER, Applicant SUSAN TenEYCK, Respondent
BEFORE: Madsen J.
COUNSEL: None
HEARD: In Chambers
E N D O R S E M E N T – COVID-19 PROTOCOL
[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice operations are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[2] In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by the Applicant father, Dwight Cooper. He asks that the Court make an order on an urgent basis for police enforcement of access.
[3] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
[4] For the reasons set out below, I find that this matter is not urgent at this time.
[5] As with many of these determinations of urgency, the materials before the court are scant. The court received the following materials at Kitchener.Superior.Court@ontario.ca yesterday afternoon:
a. An undated Notice of Motion. b. An email to the court setting out the father’s concerns and forwarding emails from the mother. c. Screen shots of a lengthy text exchange between the father and the mother.
[6] None of the materials have as yet been served on the mother.
[7] All of the materials and this endorsement will be filed in the court record upon the resumption of regular court operations.
[8] From the father’s materials, it is possible to discern the following, from his perspective:
a. The father lives in Listowel, Ontario, with a partner, C., and has two non-subject children in his care, at least some of the time, T. and R. He says his place of business is closed presently except to emergencies. He indicates that C. has also been working from home since the beginning of March Break. The father says that T. is immunocompromised and has a “higher risk” of contracting COVID-19. He says that due to the risk to T., he and his partner are taking extra precautions in their home and are not currently involved in access exchanges with T. and R.’s father. b. The mother lives in Kitchener, Ontario, with the parties’ two children, Er. and Em. She also has partner, Cy. There appears to be an existing parenting order under which the father has regular parenting time with Er. and Em., although it is not clear on the materials what the terms are. c. The mother has taken the position that there should be no face-to-face parenting time for the father in light of the pandemic outbreak. She has proposed that, in the alternative, the father spend time with the children through FaceTime, or by meeting somewhere so the father can go for a walk with the children, maintaining social distancing by staying at last six feet apart. Her texts indicate that based on public information about the father’s workplace (there is no information about what that workplace is), she believes he continues to be in a workplace which would cause risk to the children. d. The father believes that access exchanges and parenting time should continue and that he can provide a safe environment for the parties’ children. He attended at the mother’s home on March 24, 2020 to pick up the children. The mother did not allow him to spend time with the children. The father waited for a period of time outside the door, and then called the police. On the basis of the refusal to allow him to spend time with the children he has now brought this motion.
[9] In Ribeiro v. Wright, Hamilton File No. 517/19, released March 24, 2020, Pazaratz J. set out principles to aid in the determination of urgency in this difficult time. Those principles are as follows:
a. In most situations, there is a presumption that existing parenting arrangements and schedules should continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing. b. In some cases, a parent may have to forego scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness; c. In some cases, personal risk factor through employment or associations may require controls on direct contact on a child. d. Further, lifestyle or parental behavior in the face of COVID-19 may necessitate restrictions on parenting time. There would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk. e. I would add that there may be risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments.
[10] Pazaratz J. stressed that no matter how difficult the challenge, or what modifications or restrictions may be appropriate, we must find ways to maintain important parental relationships, above all in a safe way.
[11] There are significant challenges for parents in knowing what is best for their children at this time. The “goal posts” seem to move daily, and what is deemed “safe” today may not be deemed “safe” tomorrow. Parents and the courts are aware that recommendations by senior public health officials are shifting in response to the evolution of the pandemic in Canada. While travel back and forth from Kitchener to Listowel for parenting exchanges may not be contraindicated by public health officials today, it is possible, based on the well-publicized experiences of other countries at this time, that such travel may be contraindicated in the not-too-distant future. We simply do not know. It is no wonder that this is a difficult time for parents to make decisions.
[12] This is a circumstance that demands the best of parents and requires them to work together, no matter their differences, to craft the safest options for children while ensuring that children derive the benefit of the love, nurturance, and guidance of both of them. Of course, the overriding requirement on parents is to keep the health, well-being, and best interests of their children at the forefront of their decision-making.
[13] In this case, a police enforcement clause, as sought by the father, is no solution. This would cause significant stress on the children and is not appropriate in the circumstances. Police enforcement is not what is “urgent” at this time.
[14] What is “urgent” at this time is that this mother and this father work together to adapt and shape their existing parenting order to work in the current circumstances. That order continues to govern. There is no presumption that COVID-19 permits a primary residential parent to terminate the children’s time with the other parent. These parents should work together to make any adjustments needed to fit the current public health circumstances. When they have agreed to those adjustments, they should write down their agreement so both are clear on what the modifications will be. Given how rapidly circumstances are changing, they may need to adjust their arrangements several times.
[15] The Kitchener-Waterloo court is aware that off-site mediation services continue to be available to parents to facilitate discussions on important parenting issues such as this. In Kitchener-Waterloo, the mediation service provider is AXIS Mediation. The parties are encouraged to contact AXIS Mediation to discuss what distance mediation services (by teleconference or video-conference) may be available to help develop a plan that maintains the children’s relationship with both parents during this time and succeeds in putting the children’s safety at the forefront. AXIS can be reached at 1-888-988-2947 or at info@axisfamilymediation.com. There may be other mediation services also available and the parents are encouraged to explore options in that regard.
[16] The parents are encouraged to work together. It is evident from the emails and texts of both parents submitted by the father that both want what they each believe is best for the children. In this unprecedented time when we know children need reassurance and comfort from their parents, Em. and Er. would benefit from knowing that their parents are putting their safety and security first, and that their parents are on the same team.
[17] The motion brought by the father is not urgent at this time. This determination is without prejudice to either parent. Either may bring a motion to the court, on notice to the other parent, if circumstances change, and a new determination of urgency will be made at that time.
[18] The father shall serve the mother with a copy of all of the materials submitted to the Court and a copy of this Endorsement forthwith by email.
DATE: March 26, 2020
