Court File and Parties
COURT FILE NO.: 19-2430 DATE: 2020/03/26 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Skuce, Applicant AND Leah Skuce, Respondent
BEFORE: The Honourable Madam Justice A. Doyle
COUNSEL: Jack Pantalone, Counsel for the Applicant Marta Siemiarczuk, for the Respondent
HEARD: March 26, 2020 at Ottawa via telephone conference
Endorsement
[1] The issue is whether this matter is urgent and should proceed as an exception to the March 15, 2020 directive issued by the Chief Justice of the Ontario Superior Court of Justice that all family matters are adjourned due to the COVID-19 pandemic.
[2] For the reasons that follow, I find that this matter is urgent. Having found that the Court must deal with this matter on an urgent basis, the Court will modify the previous Court Order dealing with access by the father to the children as set out below.
[3] In the event of a change of circumstances, the parties may bring this matter back before me as arranged through the Trial Coordinator.
Background
[4] The parties commenced cohabitation in September 2008 and were married on July 25, 2009. They separated on May 18, 2019.
[5] There are three children of the marriage: Dylan born November 8, 2012 (7 years old), Neil born October 8, 2014 (5 years old) and Adrian born September 30, 2016 (3 years old).
[6] The children reside with their mother, the Respondent, Leah Skuce. After the separation, the parties agreed that the father would visit with the children supervised by his mother or her husband.
[7] In July 2019, the Respondent mother insisted that she supervise visits as she stated that this had been recommended by the Children’s Aid Society (CAS). This contention is not supported by the evidence filed, namely, the letter from the CAS employee, Ms. Ranger.
[8] On October 16, 2019, the parties attended with a mediator, Marianne Cuchaci. The parties signed a parenting agreement dated November 8, 2019 which provided that the father’s access with the children would be supervised by the mother for 2.5 hours each Saturday or Sunday and 15 minutes at the children’s school on Tuesday mornings (7:15 a.m. to 7:30 a.m.)
[9] The father is a recovering addict and indicates that he has been free from drugs/alcohol since November 2019. Prior to that time, he indicated that he was sober from 2010 to May 2018.
[10] He has outlined that he is in recovery: he attended the Bellwood Program in Toronto for a 6-week program in the fall of 2019. He had been there previously in the spring of 2019. He has been residing at the Sobriety House since the fall of 2019. He indicates that he is staying now at a friend’s home and the friend is absent from the country. He returns to Sobriety House in the evenings. Sobriety House has implemented a number of measures to comply with COVID-19 protocol including social distancing, no visitors permitted, available sanitizers, etc. The father indicates, which is confirmed by his mother and her husband, that he is invited to return home to live with them.
[11] The father is under the care of psycho-therapist Dr. John Robertson who, in his filed report, indicates that the father is in recovery and has followed his rehabilitative program including the regular drug/alcohol screening tests and attending Alcoholics Anonymous (AA) meetings and therapy sessions. The father is also attending regularly with his psychiatrist Dr. Serge Lessard.
[12] The Court proceedings include the following:
- The father brought an urgent motion returnable on December 17, 2019 which was dismissed by Justice Summers as she found that there was already an access schedule in place as had been agreed to by the parties and the case conference could be moved up to an earlier date;
- On December 17, 2019 the parties agreed on a Christmas access schedule;
- A case conference, originally scheduled for February 27, 2020 was moved to an earlier date of January 8, 2020, was held before Master Kaufman; and
- The father brought a motion returnable March 24, 2020 that was settled on March 14, 2020 through an exchange of correspondence between counsel.
[13] The parties signed Minutes of Settlement dated March 16, 2020 which provides, among other things, for the following access by the father:
- 30 minutes before school at Hopewell School;
- Every Saturday from 9:30 a.m. to 3:30 p.m. as follows:
- 9:30 a.m. to 12:30 p.m. supervised by the mother in the community;
- 12:30 p.m. to 3:30 p.m. supervised by his mother or her husband at a location to be determined by them; and
- Random drug and alcohol testing twice per month paid by the mother.
[14] These Minutes of Settlement were incorporated into a Consent Interim Order which was filed with the Court.
[15] The parties have agreed to a custody/access assessment but the assessor, Dr. Worenklein, has not commenced the assessment at this time.
[16] The Police and Children’s Aid Society records were filed in the original motion scheduled for March 24, 2020.
Urgency
Position of the parties
Father’s position
[17] The father requests that the Court hear this matter on an urgent basis as the mother’s self-help remedy should not be condoned.
[18] He is requesting an Order that he have face to face contact with the children in accordance with the Minutes of Settlement dated March 15, 2020 but that his parents supervise the visits.
[19] His mother, Marsha Skuce has filed an Affidavit in support of this motion and his step-father, Jim Nininger, his mother’s husband, has also filed a supportive Affidavit.
[20] The father indicates that he is committed to sobriety, has followed all his recovery steps and it is in the children’s best interests that he have regular contact with them and that he is prepared to follow all COVID-19 directives.
[21] He indicates that the mother’s supervision of access to date has not been in the children’s best interests as she has called him “Michael” or “addict” in their presence and he alleges that one of the children has called him a “dangerous man”.
Mother’s position
[22] The mother submits that this is not an urgent matter.
[23] She submits that due to the COVID-19 directives, all contact with the children and their father should be via Facetime or videoconferencing.
[24] She submits that his motion be dismissed but that the access continue only by video-conferencing.
[25] She indicates that the father was still Facetiming the children on March 22, 2020 and March 23, 2020 from the Sobriety House which has shared living areas including a shared dining room.
[26] She submits that the father has not been self-isolating and any future face to face contact with the children jeopardizes the children’s health as well as her health and her parents’ health.
Analysis
[27] The Court has rendered this matter urgent as the best interests of the children dictate that the legal aspects of their time with their father be solidified. These are my reasons.
Signed Minutes of Settlement
[28] Firstly, the Court notes that the parties signed Minutes of Settlement that resolved the motion returnable March 24, 2020. The parties had submitted the draft Order approved as to form and content with the Court. It is unknown at this time whether the Order has been issued.
[29] The father simply wishes to enforce the terms of the Minutes with some modifications and the mother is asking for them to be changed so that the children only see their father through videoconferencing.
[30] The mother is essentially wishing to resile from the agreement due to the intervening world events.
[31] These are exceptional and unusual times for everyone. A pandemic has been declared by the World Health Organization. Our world, as we know it, has changed dramatically. Directives from various levels of government are being declared on a constant basis.
[32] There is a great deal of uncertainty and news bulletins regarding the spread of this deadly disease permeate our community. We are subject to a barrage of advice and comments on how to keep ourselves safe.
[33] It is an understatement to state that people are experiencing anxiety and scrambling to understand how to navigate this new reality. The impact of this pandemic is being experienced on so many different levels including health care, economy and social networks.
[34] It is vital for the children of separated families who have parenting times with caregivers be provided with some certainty. That certainty which is contained in Court Orders should be respected. If modifications must be made, parties are encouraged to modify the agreement/Order. In this way, litigants can ensure that the children’s best interests are safeguarded during this troubled time.
Discouraging self-help remedy
[35] Regarding urgency, I have reviewed MacPherson J.’s decision of March 25, 2020 in Douglas v. Douglas, 2020 ONSC 1883, where as a triage Judge, he declined to deal with the case as an urgent matter. Since February 2020, the father had been regularly exercising access without a court order/agreement in place and the mother had unilaterally changed the status quo and would not allow the father face to face contact to the 6.5 year old child due the father exhibiting health risk behaviour. Justice MacPherson found that the case did not meet the definition of urgency as set out in the Superior Court of Justice’s Notice to the Profession of March 15, 2020.
[36] In this case, there is a consent order. The mother has chosen not to respect it. She indicates it is no longer in their best interests. She has engaged in a self-help remedy despite a clear consent Order that was filed a few days ago. The Court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.
Urgent relief dealing with the contact between a party and a child
[37] In my view, this case falls within the ambit of the Notice to the Profession as it deals with safety of the child/parent, restrictions of contact and well-being of the child and issues relating to the retention of the children. It also will deal with upholding respect and compliance with existing Court Orders.
[38] In order to deal with this health crisis, the Superior Court of Justice Notice to the Profession dated March 15, 2020 states:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
[39] Certainly, the above directive recognized the importance of protecting children and ensuring that their needs were not jeopardized during these uncertain times.
[40] Uncertainty and lack of direction can add further havoc to the lives of the children who are most vulnerable when the parties are unable to resolve matters.
[41] As stated in the parties’ first parenting agreement signed October 22, 2019, the children need a structured plan of parenting and care and this must be established and not changed spontaneously based on the parents’ changing preferences. The parties’ interim consent Order attempted to instill some predictability.
[42] The children need and deserve stability, comfort and predictability in their routine.
[43] Despite the current world events, this can be accomplished.
Family Law Rules’ primary objective
[44] Thirdly, I note that rules 2(2), (3) and (4) of the Family Law Rules, O. Reg. 114/99, state that:
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).
[45] I find that the children need some stability in their lives by ensuring that there is regular contact with their father in accordance with their best interests.
[46] The Court should devote some time to this matter given its importance to this family and implications to all families in these unique times.
Definition of urgency
[47] As stated in Rosen v. Rosen, 2005 ONSC 480, [2005] O.J. No. 62, which refers to Hood v. Hood, 2001 ONSC 28129, [2001] O.J. No. 2918 (S.C. – Family Court), in which this definition was considered.
[48] These cases are decided as to when a court should hear a motion before a case conference. He commented, “It is my decision that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.”
[49] These cases do provide some guidance when dealing with urgencies in a general sense.
[50] The first step mentioned in Rosen is an inquiry as to how quickly case conference dates are available to deal with the matter.
[51] Here, the availability of next dates given the Superior Court of Justice directive is not until June and that does not necessarily mean that it will be dealt with in a wholesome way but could be just addressed.
[52] As this is written, the future is uncertain. This uncertainty as to whether a matter could be addressed sooner or later is unpredictable.
[53] The next step raised in the Rosen case its that prior to bringing a motion the parties should engage in settlement discussions to try to obtain a resolution of the pressing matters pending the case conference date.
[54] This step should still occur. Family law litigants and their counsel, if any, must continue to take all reasonable steps to resolve their matters.
[55] I note that there were exchanges of emails prior to this motion and the father was not prepared to accept the mother’s position that any contact with his children would be only by video-conferencing.
[56] Yelle v. Scorobruh, 2016 ONSC 3300, also provides other criteria to consider at para. 50:
Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator’s office. If so, the dates available should be included in the materials before the court;
Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance. For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date and so this date must be taken into account in determining urgency;
Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;
Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, dire financial circumstances;
Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or
If there are other pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues, this may bring the matter out of the normal procedure as it may require immediate attention by the court.
[57] Having considered the above, this matter requires the Court’s immediate attention. I find that the father has established the need to deal with this case at this time. The mother is also asking the Court to deal with the terms of access by the children to their father.
[58] The children’s safety is of concern and hence I am prepared to deal with this matter.
Best Interests of the Children
[59] The next issue is what court order should be made.
Position of the parties
[60] The father wishes access to be supervised by his parents in their home. He intends to move out of Sobriety House.
[61] The mother wishes his access to be to the children via videoconferencing for two hours three times per week.
What Order is in the children’s best interests?
[62] In determining what access the father shall have to the children the Court is governed by the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (“Divorce Act”) which stipulates that custody/access shall be determined in accordance with their best interests.
[63] I am not dealing with this motion as the original motion scheduled for March 24, 2020. The mother did not file responding materials to the father’s affidavit dated March 10, 2020 as the motion had been settled by the parties by way of minutes of settlement dated March 16, 2020.
[64] The father provides great detail in his affidavit of the mother’s efforts to minimize access and making misleading information to third parties.
[65] These allegations will be dealt with at another juncture once the mother has responded to them. They may also be canvassed during the assessment process.
[66] Rather, the Court intends to focus on what is in the children’s best interests given the health issues that have arisen since that time.
[67] Are the terms of the Minutes of Settlement dated March 16, 2020 in the children’s best interests?
[68] The parties signed it with the advice of their respective lawyers and as the parents of these three children, believed that on the interim basis the terms met the children’s best interests. The Minutes of Settlement allowed the father regular time with the children with the weekly supervision being monitored by the mother and the paternal grandmother or her husband. It provided for regular substance abuse testing and ensured that the children were safe with the father.
[69] The Minutes of Settlement were signed after the declaration by WHO that COVID-19 was a pandemic but before there were measures put in place such as declarations of emergencies, closure of non-essential businesses, banning of gatherings and directives for social distancing.
[70] The onus is on the mother to satisfy the Court that this parenting plan is no longer in the children’s best interests and that the children would be at risk if this access was implemented.
[71] In his March 24, 2020 decision of Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazaratz dealt with a case where the mother had brought an urgent motion to suspend all in-person access because of COVID-19.
[72] As the triage Judge, Justice Pazaratz did not authorize the matter to proceed as an urgent matter at that time.
[73] The father has indicated a willingness to adhere to the appropriate COVID-19 protocols in the future. The maximum contact principle set out it in the Divorce Act should be respected so long as it is in the children’s best interests.
[74] Although, the health, safety and well-being of children remains the Court’s foremost consideration during the COVID-19 pandemic, Justice Pazaratz noted that there was an existing parenting agreement and that it is presumed that meaningful personal contact between the parent and the children is in the children’s best interests.
[75] However, there are constant well-publicized directives from the government and other public health officials directing that in these exceptional circumstances and extraordinary times, much of individuals’ lives and daily routines and activities will be needed to be suspended.
[76] Individuals are told to practice social distancing and limiting community interactions. Ontario government as of midnight yesterday directed all non-essential businesses to close.
[77] These dramatic changes affect everyone.
[78] As stated by Justice Pazaratz at para. 21 of his decision, if a parent wishes to limit the contact between a parent and a child during this crisis, they will be required to provide:
a. specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b. 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.
c. 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.
d. 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.
[79] The mother’s concerns are that she has health issues, her parents are elderly and have health issues and that the father was as of March 24, living in Sobriety House, which has communal living.
[80] Firstly, the father has agreed to abide by the COVID-19 protocol which includes ensuring regular handwashing, using hand sanitizers, ensuring that the children maintain their social distance with others and complying with public safety directives.
[81] He has indicated that Sobriety House has implemented appropriate protocols to comply with COVID-19 directives.
[82] The father and his mother and her husband are practising social distancing and following protocol and agree to continue to do so.
[83] By practising these protocols, the risks to the mother and her parents can be minimized. The Court has no direct evidence from the tenant/live-in nanny who resides with the mother and whether she is practising social distancing and the COVID-19 protocols.
[84] Court orders that set out the parenting arrangements for children, even in these uncertain times, should be adhered to unless there are compelling reasons and evidence that satisfies a Court that there should be a change. The evidence must establish that due to this pandemic the child’s health and safety are at risk.
[85] The parties must follow the protocol has been directed regarding the COVID-19. This includes handwashing social distancing where possible, limiting exposure to other individuals, use of sanitizers and other protective products.
[86] Community access previously agreed to by the parties is not necessarily feasible at this time. The community has been told to avoid parks and community areas.
[87] At this time, it would be in the children’s best interest that access to take place at the paternal grandmother’s home.
[88] Parents are encouraged to maintain their children’s routine and scheduling to ensure that their contact with their parents is not disrupted if at all possible. Their lives are already significantly disrupted due to no schooling, lack of organized activities, no March break activities and cancellation of businesses, social events, concerts etc.
[89] The one aspect that is important for the children is that the parents/caregivers who are in their lives and who have been deemed to be individuals who are entitled to contact with their children should continue to maintain their relationship.
[90] Children will benefit from being nurtured and comforted by both parents who have been part of their lives. This routine should only be disrupted if evidence has been established that the children’s health and safety are at risk.
[91] The father is planning to return to live with his parents and he should continue his self-isolation with his parents and not return to Sobriety House.
[92] I do however note that he has indicated that Sobriety House has taken steps to follow the protocols as directed by the various authorities.
[93] However, given the exposure by the father to at least other eight residents and other staff members, it would prudent at this time, to limit the risk to the children until the father has returned home to his parents and has not been in contact with other people.
[94] Therefore, the Order incorporating the terms of the Minutes of settlement will be varied as follows:
There will be no Tuesday morning access so long as the school remains closed;
Provided that the father has moved back into his parents’ residence by 9:30 a.m. on March 28, 2020, the father’s access will be supervised by his mother and her husband every Saturday commencing April 11, 2020 at the paternal grandparents’ home from 9:30 a.m. to 3:30 p.m. The father or his parents will be responsible to pick up and drop off the children from the mother’s home and are to remain at the end of the driveway.
The father and his parents are to follow the protocols as directed by various government offices.
Until April 11, 2020, the father’s time with the children will be by way of FaceTime, Skype or videoconferencing three times per week for two hours as arranged by the parties.
All other terms in the Order will remain in full force and effect.
In the event of a change of circumstances, the parties may return before me by setting up a time through the trial coordinator’s office.
[95] I encourage the parties to agree to the issue of costs. If they cannot do so, the father will submit his one page cost submission with relevant attachments by May 15, 2020 and the mother will submit her one page cost submission by May 29, 2020.
The Honourable Justice A. Doyle Date: March 26, 2020
COURT FILE NO.: 19-2430 DATE: 2020/03/26 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Michael Skuce, Applicant AND Leah Skuce, Respondent
BEFORE: The Honourable Madam Justice A. Doyle
COUNSEL: Jack Pantalone, Counsel for the Applicant Marta Siemiarczuk, for the Respondent
ENDORSEMENT Justice A. Doyle Released: March 26, 2020