COURT FILE NO.: F1537/16 DATE: April 14, 2020
Superior Court of Justice – Ontario
FAMILY BRANCH
RE: Kelli Joan Tigert, applicant and Damin Thomas Smith, respondent
BEFORE: Tobin J.
COUNSEL: Cynthia Weeks, for the applicant Respondent, in person
HEARD: April 9, 2020 by teleconference
Endorsement -- COVID-19 Protocol
[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 15, 2020, this urgent motion was heard by teleconference. See the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[2] The respondent (“father”) brings this motion on an urgent basis because the applicant (“mother”) is not following a court order. She is not allowing their six-year-old daughter, Mackenzie Lynn Tigert-Smith, born July 8, 2013 (“child”), to go with him for access. He wants the mother to comply with the existing order and requests a police-assist order if she does not.
[3] The mother claims that he has not taken the steps required during the pandemic to keep their child safe while in his care.
[4] He denies this is the case.
[5] Electronic materials were filed through the Courthouse email address: London.Courthouse@ontario.ca.
[6] The father’s affidavit dated April 2, 2020, filed in support of his motion, was not sworn. He participated on the teleconference and I am satisfied that it can be considered as evidence on this motion.
[7] The father also provided in support of his motion an email from Robin Johnson, dated April 3, 2020 at 20:28 and Tausha Pelley, dated April 3, 2020 at 17:56, both sent to him. They were not considered on this motion as the authors of those emails did not attend on the teleconference to swear to (or affirm) the truth of the contents of their respective emails.
[8] Upon the resumption of court operations, all materials (except the two emails referred to above) will be duly filed in the physical record at the courthouse.
[9] On April 3, 2020, Henderson J. as triage judge, found the father’s motion to be “presumptively urgent” because “access was being denied due to the Applicant’s concerns regarding the child’s exposure to COVID-19.” He made the following order:
- This motion shall be heard by teleconference on Thursday April 9, 2020 at a time to be scheduled by the trial coordinator. Call in details shall be provided in due course.
- The applicant shall have until noon April 8, 2020 to file her responding material on the Applicant and to file it with an affidavit of service with the trial coordinator. Service and filing shall be effected by email.
- Unsworn affidavits may be filed. They will be affirmed at the hearing.
[10] The motion was referred to me for a determination on urgency and, if urgent, on the merits.
[11] The mother filed her responding affidavit as ordered.
Preliminary Issue
[12] The issue is whether this case should have been started in the Regional Municipality of Waterloo.
[13] Rule 5(1)(b) of the Family Law Rules, O. Reg. 114/99 provides that if a case deals with custody of or access to a child, it is to be started in the municipality where the child ordinarily resides. [1]
[14] The evidence discloses that the child resides primarily with the mother in Waterloo, Ontario.
[15] The father’s position is that the case can be dealt with by this court because the existing order allows for that to take place. The problem with this submission is that the order was not provided in the material filed. [2] However, the mother did not contradict this assertion.
[16] The mother did not want to challenge this court’s jurisdiction because of the importance of dealing with this matter expeditiously.
[17] Based on this concession, the irregularity in process will not prevent me from considering this presumptively urgent matter. [3]
Urgency
[18] The mother conceded that the motion was urgent: see Skuce v. Skuce, 2020 ONSC 1881 and Balbontin v. Luwawa, 2020 ONSC 2060.
[19] I agree and, for the reasons that follow, find that this case is urgent. It should be dealt with by the court now to address how contact between the child and the father should take place during the COVID-19 pandemic. In reaching this conclusion, I take into account that in Thomas v. Wohleber, 2020 ONSC 1965, Kurz J. cautioned that “it is important to emphasize the scrupulousness with which the urgency standard must presently be enforced.”
[20] There is an order in place that defines the parenting schedule these parties follow. This order has been in place since August 15, 2017. While sharing joint custody of the child, the child is scheduled to have regular access with the father three out of five weekends. The child splits her March Break with both parents.
[21] In Thibert v Thibert, at para. 2, the court summarized the current case law dealing with access during the pandemic as follows:
Various cases have considered the impact of the pandemic on access orders. 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.
[22] The rationale for continued parent contact is that, under the existing order, it is presumed to be in the child’s best interests. This rationale gives way if, as a result of continued contact, the child’s safety or wellbeing would be compromised.
[23] In her evidence, the mother raised serious concerns about the father’s actions while caring for the child.
[24] On March 22, 2020, the child returned to the mother’s care following her being in the father’s care during her March Break visit. On their way home, the child told the mother about activities she engaged in during the March Break including having another family come to the father’s apartment, going to another home, having sleep-overs and going to a park with another family.
[25] The mother sent emails and texts to the father on March 22, March 23 and March 26, 2020 asking him to provide information about what he did with the child during the March Break.
[26] He did not respond.
[27] On April 1, 2020, the mother informed the father that “[t]here will be no further access until all of the protective measures have been dismissed and it is considered safe.”
[28] This was an act of self-help by the mother. I agree with Doyle J., who stated in Skuce, supra, at para. 36: “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.”
[29] In Ribeiro v. Wright, 2020 ONSC 1829, at para. 21, the court set out the steps to be taken by a person concerned about their child’s safety or wellbeing due to COVID-19 as follows:
a. 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. 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.
[30] In the Notice to the Profession dated March 15, 2020, urgent matters applicable to this case included:
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;
[31] Withholding the child contrary to the existing order raises an issue relating to the child’s wellbeing.
[32] The mother’s evidence regarding the father’s actions during the March Break raises an issue relating to the child’s safety.
[33] It is based on these factors that I find that this is an urgent case within the contemplation of the Notice to the Profession dated March 15, 2020.
Best Interests
[34] The mother was told by the child that, while with the father during the March Break, he put her in situations that were inappropriate during the COVID-19 outbreak.
[35] I accept that the mother withheld physical contact between the child and father, not out of malice but out of reasonable concern for her safety. She did not deny all contact between them. The mother proposed and arranged for virtual access to the child with the father and his family. Chats have been scheduled three times a day. The child is able to play games online with the father.
[36] On the record before me, I find that the father did not respond to the mother’s concerns in a timely manner. This led to the mother’s decision to withhold the child.
[37] In his evidence, the father acknowledged that the child did engage in the activities described by the child to her mother but that they occurred before the COVID-19 emergency was declared. He questioned the child’s “recollection of time” because of her age.
[38] In his evidence, the father provided assurances that he has followed required safety measures, including frequent hand washing, frequent cleaning of surfaces, social distancing and that only one person from his home goes for groceries and medications. The last visit he or those living with him had with someone outside of his immediate family occurred on March 6, 2020. Neither he nor his spouse are currently working out of their home. In response to a question I asked, he advised that no one in his home has been engaged in activities within the last 14 days that required self-isolation.
[39] I find that it is in the child’s best interests to resume contact with the father as provided for in the existing order as long as “COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives.” Ribeiro, supra.
[40] I accept his evidence that he will follow all required safety measures to keep his child safe.
[41] The mother’s legitimate concerns must also be taken into account in assessing what is in the child’s best interests.
[42] It is appropriate that the mother be kept informed by the father about the steps he takes to keep the child safe during the pandemic. To this end, therefore, within two hours after the end of each visit, the father shall inform the mother in writing, by text or email, of the child’s activities engaged in while with him and the steps he took to keep her safe and promptly respond to any questions she may have about the child’s time with him. It is not expected that a detailed recounting of activities be provided, rather a general outline of activities and precautions.
[43] I urge the parties to follow, in these challenging days, the expectation the court has of parents, as expressed in Ribeiro, supra, at para. 23:
Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. [emphasis added]
[44] In his motion, the father asked for a police-assist order to ensure compliance with the existing order. He claims the mother was found in contempt in 2016 for withholding the child from him and was granted an order for costs.
[45] This is not true. The mother produced the endorsement under which she was ordered to pay costs. It had nothing to do with contempt. Costs were ordered because the mother withdrew a claim she made against the father.
[46] Granting a police-assist order at this time and in the circumstances of this case is not in the child’s best interests. The upset such an order would no doubt cause, and the risk of exposure, is not warranted when considered in relation to the likelihood of the mother’s non-compliance.
[47] The currently outstanding parenting schedule as provided for in the Order of August 15, 2017 shall continue in force until further order of the court.
Order
[48] An order shall go as follows:
- That while COVID-19 remains the subject of government directions, including public safety directives and subject to further order of the court, the father shall: a) meticulously adhere to COVID-19 safety measures – including social distancing; use of disinfectants; compliance with public safety directives; and b) within two hours after the end of each occasion the child is in his care, inform the mother in writing, by text or email, of the child’s activities engaged in while with him and the steps he took to keep her safe and promptly respond to any questions she may have about the child’s time with him.
- The father’s request for a police-assist order is dismissed.
- This endorsement is effective when signed. No formal order is required.
Justice B. Tobin DATE: April 14, 2020
Footnotes
[1] The exceptions to that requirement referred to in that rule do not apply in this case.
[2] It not clear who made the order referred to by the father. In his notice of motion, the father states it was an order of McSorley J. but in his affidavit it is described as an order of Leitch J.
[3] The parties did not address on what basis the motion to require compliance with an existing order and for an enforcement remedy was brought. I will address the issues raised by the parties, despite the uncertainty in and irregularity of process.