Court File and Parties

Court File No.: F1174/18-01 Date: April 14, 2020 Superior Court of Justice – Ontario Family Court

Re: Luke Potter, applicant And: Jaime Gibson, Judy Gibson and David Gibson, respondents

Before: MITROW J.

Counsel: Luke Potter in person Jaime Gibson, Judy Gibson and David Gibson in person

Heard: April 14, 2020

Endorsement

[1] This is the applicant’s (“the father”) motion heard by teleconference on April 14, 2020 in accordance with the protocol governing the hearing of urgent matters while normal court operations are suspended due to the COVID-19 pandemic. The father seeks the immediate return of a child and a police assistance order.

[2] The current proceeding before this court is an application commenced by the father in June 2019. Pursuant to the existing final order dated May 16, 2018, the father has sole custody of the child, age 14. This final order was made in the Superior Court of Justice, Family Court in Oshawa.

[3] There was some discussion during the motion as to whether the father also had issued a motion to change in London, Ontario, but that matter was not resolved. Accordingly, I deal with the father’s current motion as being made in the application.

[4] The father and child reside in London. The respondent, Jaime Gibson (“the mother”), resides in Oshawa with the respondents, David Gibson and Judy Gibson, who are the mother’s parents and the child’s maternal grandparents. All the respondents have access to the child as specified in some detail in the final order.

[5] The father’s claim for urgency arises out of an allegation that the mother, and also the maternal grandparents, are refusing to return the child to the father in contravention of the existing final order.

[6] The evidence on the motion consists of the father’s affidavit sworn April 6, 2020 and the mother’s affidavit which was not signed. During the hearing of the motion, the mother was affirmed and adopted the contents of her affidavit as true and correct. The father did acknowledge that his “screenshots” were not part of his affidavit. Accordingly, the “screenshots” were not considered in dealing with the motion.

[7] The parties agree that the child went on a trip to Cuba with the mother during the recent March break. On their return home, given the rapid developments arising as a result of COVID-19, it was necessary for the mother and child to be quarantined for 14 days, ending April 3, 2020.

[8] The father does not raise an issue regarding this quarantine. He does, however, depose that he had called the child during this quarantine period and that the child told him she was “out with friends.” The mother deposes that she had been in quarantine with her parents and the child for 14 days and swears with “utmost certainty” that no such conversation occurred between the child and the father. It is not possible to make any findings regarding this conflict in the evidence based only on affidavit material. However, this does not affect the ability of the court to deal with the father’s motion.

[9] The central dispute revolves around the 14 days subsequent to April 3, 2020. The father demanded the return of the child by April 5, 2020. However, as confirmed in email exchanges between the parties during the period April 3 to April 5, the mother explained that her father (the maternal grandfather) had been in a grocery store in Oshawa where two employees tested positive for COVID-19 and that “one man died from it.” The mother explained that they were told to self-isolate for 14 days and the mother proposed to return the child to the father at 6 p.m. on Friday, April 17 at the usual access exchange location in Milton.

[10] The father’s blunt response was a demand that the access exchange occur at Milton at 6 p.m. on Sunday, April 5, failing which the father will be “forced” to obtain an emergency court order. The father acted on his threat and brought the motion now before the court. The email exchanges referred to above are appended as exhibits to the father’s affidavit.

[11] In his affidavit, the father puts forth the theory that the mother’s refusal to return the child is part of a current strategy designed to keep the child in Oshawa.

[12] The material filed suggests that all parties have been involved in a longstanding and high-conflict dispute regarding the child. That being said, the father’s motion is to be dealt with on the evidentiary record before the court. There is no evidence challenging the veracity of the mother’s explanation as to the necessity of a second 14-day quarantine period ending April 17. The father’s submission that the mother’s evidence is contrived is just that – a submission. A submission is not evidence, and is not persuasive, when the submission is not supported by any credible evidence.

[13] The mother’s emails are abundantly clear that the child will be returned on April 17 and that remained the mother’s position on the hearing of the motion.

[14] In considering all of the evidence, I find that there is no urgency. I find that the father acted unreasonably in demanding the return of the child on April 5 given the explanation proffered by the mother in her emails and later in her affidavit.

[15] Although I have found no urgency, given the high-conflict nature of this case I have elected not to dismiss the motion, and instead, the order below requires the return of the child by April 17, with this matter coming back before me to ensure that the child has been returned. The father’s motion did seek a police assistance order, but I find, at this time, that that is not necessary.

[16] The mother’s affidavit refers to a motion for contempt currently before the Superior Court of Justice, Family Court in Oshawa, alleging that the father withheld the child for access. This serves to underscore the high-conflict nature of this case.

[17] The mother expresses a concern that the father “is going to retaliate” against her for failing to return the child on April 5, 2020. This is speculation on the mother’s behalf, not grounded in the evidence on the motion.

[18] The parties are reminded that a court order is an order, not a suggestion, and must be obeyed. However, in these extraordinary and unprecedented times due to the COVID-19 pandemic, the parties, and parents in general, will need to practice good common sense. This includes being reasonable and adapting, in the best interests of the child, to urgent and unusual situations that may arise due to COVID-19.

[19] I make the following interim order:

1. The child shall be returned to the father’s care at 6 p.m. Friday, April 17, 2020 at the usual access exchange location near Milton, Ontario.
2. This motion is adjourned before me via teleconference on Tuesday, April 21, 2020 and the trial coordinator shall forward to the parties the time and all other call-in details for the teleconference.

“Justice Victor Mitrow” Justice Victor Mitrow Date: April 14, 2020