Court File and Parties
COURT FILE NO.: 2332/14 DATE: 2020-03-31 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Derek Scharafanowicz, Applicant AND: Angele DeMerchant, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Mr. Sam Garcea, Counsel, for the Applicant Ms. Deborah Barfknect, Counsel, for the Respondent
HEARD: March 31, 2020 – No Appearances – Triage Endorsement
Endorsement
[1] AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 24, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed. See the Notice to the Profession dated March 24, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.
[3] I have reviewed the following materials:
a. March 30, 2020 Notice of Motion of Respondent mother. b. March 27, 2020 Affidavit of Respondent mother. c. March 31, 2020 Affidavit of Applicant father.
[4] In Ribeiro v. Wright, 2020 ONSC 1829 this court reviewed some of the considerations applicable when a parent brings a motion to deal with parenting issues on an urgent basis, in the context of the current COVID-19 crisis.
[5] As it happens, the parenting concerns and allegations raised in this case relate to protection issues, rather than health issues.
a. This is not a “the children need to be protected from a virus” case. b. This is a “the children need to be protected from a certain individual” case. c. Protecting children from individuals is comparatively easy. Which is why I am surprised that this matter was presented to the court as an “urgent” matter.
[6] In Ribeiro this court requested – indeed, instructed – parents and lawyers to be mindful of the practical limitations imposed on our family court system as a result of the COVID-19 general suspension of court activity.
a. Judges will always be available to deal with truly urgent children’s issues. But that limited resource should not be abused. b. There should be a general presumption that existing parental relationships and timesharing arrangements should be continued – to the extent that this can be done in a manner which ensures the safety of children and the members of each household. c. If necessary, timesharing regimes may need to be modified – perhaps on an evolving basis – to address specific concerns or dangers. Modifying timesharing is not nearly the same as terminating timesharing. The latter should only occur as a last resort. d. Both parents will be required to demonstrate insight and awareness with respect to the nature and magnitude of any danger. e. Both parents will be required to demonstrate fairness, creativity and diligence in proposing – and adhering to – timesharing terms which safeguard both the physical and emotional well-being of children. f. Both parents will be expected to demonstrate their good faith by making every reasonable effort to communicate, negotiate and resolve or narrow the dispute – before resorting to our currently strained family court system. g. Now more than ever, children need both parents. And judges need both parents to be sensible.
[7] The facts of this case are fairly straightforward.
a. The parties were never married. b. They have two children ages six and four. c. There has been a long-standing joint custody, equal time-sharing arrangement. (The existing final order only refers to the older child, but after the second child was born, the parties maintained equal timesharing for both children.) d. Everything was fine until March 8, 2020 when an issue arose in relation to a man I will refer to as R.D. e. The father says the older child advised him that R.D. was living with the mother, and that R.D. had assaulted him on the “pee” and on the “bum”. The mother says she understood the father’s allegation was that R.D. had “spanked” the boy. f. The father has refused to return the children to the mother since March 8, 2020. Initially he said they were sick. Then he revealed the allegation about R.D. g. The mother says R.D. is just a friend – not a boyfriend. She says R.D. has never lived with her. R.D. has never been left alone with the children. R.D. has never assaulted, spanked or been inappropriate with either child. h. CAS were contacted. The mother says she is cooperating with CAS, and they informed her that there is no basis for the father withholding the children from the mother. CAS told the mother the court order should be followed. i. The father acknowledges CAS has spoken to the mother. But he says the Society has not yet spoken to him or the children. j. The police were contacted. The mother says she has cooperated with them and advised them that R.D. was never in a position to assault either child. k. The father says he’s spoken to the police. An interview was scheduled for March 19, 2020, but it has now been rescheduled to April 2nd.
[8] These sorts of complications and allegations are not unusual.
a. We often see situations where one parent develops a concern that something inappropriate happened while the children were with the other parent. b. We are often asked to wait, or suspend timesharing, while investigations are conducted by CAS and/or the police. c. The underlying theme is always: “Let’s not risk the children until we have better information about the danger.”
[9] But in this case, there appears to be very little “risk” to impede a resumption of normal parent-child relationships and schedules. Paragraph 5 of the father’s affidavit is quite informative:
“If it not my intention to stop access. It is simply my intention to allow the police to interview our son this week. After the interview, depending on the outcome, matters may in fact resolve. If the individual (R.D.) is not charged, then the week about access should resume. If the individual is charged, then conditions need to be put in place to restrict the particular individual from having any contact with our children. Ultimately, if he is charged, I assume that his bail conditions may resolve that matter.”
[10] Here’s why I’m having difficulty identifying any real inconsistency between the father’s and the mother’s positions:
[11] The father’s position:
a. He expresses no concerns about the mother’s parenting. b. He says his only concern is about R.D. who he perceives to be the mother’s live-in boyfriend. c. He wants timesharing suspended until police make a determination as to whether R.D. should be charged with assaulting the father’s older child. d. He says if R.D. is not charged, the “week about access should resume.” e. He says if R.D. is charged, he presumes terms of bail will prevent him from having any contact with the children. f. So really, whether R.D. is charged or not, either way the father fully expects that the children should resume equal timesharing with the mother. The only variable is whether there is to be any restriction about R.D.’s involvement.
[12] The mother’s position:
a. R.D. is not her boyfriend. He does not live with her. He is just a friend. b. R.D. did not assault the child. He was never left alone with the child. c. The father is simply fixated on the unfounded idea that any male person in her life represents a danger to their children. d. At paragraph 21 of her affidavit the mother stated: “I have also agreed to not have R.D. around the children at all currently.”
[13] So, if the father’s only concern is to make sure R.D. doesn’t have any contact with his children – and if the mother has already agreed R.D. won’t have any contact with the children – then why did both parties have to hire lawyers to file emergency pleadings?
[14] Perhaps the only dispute was the timing of the resumption of equal timesharing.
a. The mother wants it to resume immediately. b. The father says it can resume after the police interview scheduled for April 2, 2020 – two days from now. c. The father doesn’t specifically allude to why we need to wait. d. Perhaps he is worried that if the children are released to the mother before the police interview, the mother might influence what the boy says to the police. But, as stated, the father doesn’t specifically identify this concern in his affidavit. e. On that topic, the father does not dispute the mother’s evidence that she has been having daily telephone contact with the children, ever since he refused to return them. f. Presumably, if he has been allowing the mother to speak to the children daily during the past three weeks, there shouldn’t be much concern about her trying to influence what the children say. (He doesn’t say whether he listened in on those daily calls to ensure nothing inappropriate was discussed. If he allowed unmonitored daily conversations for the past three weeks, he couldn’t have been too concerned about the mother influencing the children. And if he did listen in and heard anything inappropriate, I’m sure he would have included it in his affidavit.)
[15] Ironically, while the father is the one alleging there’s a danger, it is the mother’s proposal which actually offers more protection from any potential danger.
a. The father basically wants to leave the children’s outcome to the police. If the police charge R.D., there will be restrictions on R.D.’s contact with the children. If the police do not charge R.D., then equal timesharing will resume without any restriction relating to R.D.. This of course fails to address the possibility that there might still be concerns about R.D., even if the police didn’t conclude they had enough evidence to meet the elevated evidentiary burden in criminal matters. b. In contrast, the mother is proposing an absolute restriction on R.D. having any contact with the children, whether the police charge R.D. or not. c. I would have thought that as soon as the mother made that unconditional offer – albeit, on a temporary basis – that should have created sufficient reassurance that the whole of this dispute could and should have been resolved without the need for an “urgent” motion.
[16] Having the benefit of sworn materials from both parties, I am satisfied that I am able to determine the issues based upon the written materials, without the need for a hearing by teleconference. I am satisfied that the matter meets the threshold for “urgency”, because the court cannot permit or condone unilateral behaviour by parents, except perhaps briefly and in the most serious of circumstances.
[17] Today’s order:
a. The existing equal timesharing regime in relation to both children shall be resumed effective Thursday April 2, 2020 at 5:00 p.m. The transition has been slightly delayed – out of an abundance of caution -- to ensure that it occurs after the police have had an opportunity to complete a scheduled interview. However, if the police interview is further delayed, the transition shall nonetheless occur. b. Pending further order or written agreement between the parties, the mother shall not allow either child to have any contact with R.D. c. Neither party shall have any further discussion with the children about R.D. If either child mentions R.D. in discussion with either parent, that parent shall make every effort to discretely re-direct the conversation away from the topic of R.D. d. The mother shall be entitled to a minimum of seven days of make-up time with the children. Hopefully the parties will be able to resolve this without court assistance. e. After the COVID-19 court suspension has been lifted, the parties may address any residual issues including any terms relating to R.D.; resolution of make-up time; or costs. If only the latter needs to be addressed, it can be dealt with by written submissions of no more than two pages for each party, to be submitted within 30 days of the end of the COVID-19 court suspension. f. The mother’s request for police enforcement is adjourned, and may be brought back on an urgent basis if the father disobeys this court order. Such behaviour by the father would likely be severely sanctioned.