Court File and Parties

COURT FILE NO.: FC-18-FS053226-0000 DATE: 2020-04-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lydia Danielle Lovric, Applicant Eric Brian Olson, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: Both parties are self-represented

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 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 Protocol dated April 7, 2020, electronic materials were filed by the Applicant mother, Ms. Lovric. She asks that the court make an order on an urgent basis suspending access by the Respondent father, Eric Olson, to the parties’ child, B., who is nine years old. Mr. Olson has responded by email to the court asking that the regular parenting schedule be maintained.

[3] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.

[4] Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.

[5] For the reasons set out below, I find that this matter is urgent at this time, and I set out the next steps for the hearing of the motion.

Materials Submitted

[6] The following materials were sent by email to the Superior Court of Justice in Kitchener, Ontario:

a. Ms. Lovric’s Notice of Motion dated April 9, 2020; b. Affidavit of Ms. Lovric dated April 9, 2020, with exhibits; c. Copies of emails between the parties, some of which are copied to Charles Morrison, who may have been prior counsel for Mr. Olson; d. Affidavit of Service of Lydia Olson dated April 10, 2020 indicating service of materials on Mr. Olson by email; e. Email from Mr. Olson to the court dated April 14, 2020; and f. Further materials from Ms. Lovric, including typed statements by her, medical print-outs, a photograph, and other materials.

[7] None of the affidavit materials are signed or sworn. The email from Mr. Olson to the court does not appear to have been copied to Ms. Lovric. The materials sent by Ms. Lovric by email to the court on April 14, 2020 are not exhibits to an affidavit, they are simply loose documents. This appears to have been copied to Mr. Olson.

Factual Background

[8] From the jumble of materials submitted to the court, it is possible to discern the following:

a. The parties are the parents of three children, D. (age not clear from materials), and B., who is nine years old, and C. (age not clear from materials), who resides with Mr. Olson full-time. b. When B. was an infant, he was diagnosed with breathing issues, for which he has been prescribed medication such as Ventolin, Salbutamol, and Pulmicort. He has also needed Prednisone on a number of occasions due to difficulties with his lung function. Ms. Lovric provided the court with a copy of a several-page prescription print-out from a pharmacy showing Flovent and Salbutamol being provided for B. as recently as March 13, 2020. c. The parties disagree on the extent to which B. continues to have respiratory issues. Ms. Lovric maintains that the issues remain a serious concern. Mr. Olson states that the issues have become less serious over time and are not currently significant. He states that “Dr. Keating” believes that B. has outgrown the need for these medications. Mr. Olson does acknowledge however that “it is possible that B. has some minor residual condition.” d. B. appears to reside primarily with Ms. Lovric, although this is not clear as neither party advised the court of the current parenting schedule. There is apparently a separation agreement but the court was not provided with a copy. e. Mr. Olson has a new partner, Daneen (last name not provided in the materials). Mr. Olson does not reside with Daneen, but they “get together frequently when D. and B. are with me.” Daneen has two children who visit their own father regularly, thus going back and forth between Daneen’s home and their father’s home. Mr. Olson states that Daneen’s children see him (Mr. Olson) mostly when D. and B. are with Ms. Lovric. Mr. Olson also states that Daneen’s former partner has no contact with anyone except Daneen’s children. It is not clear how he knows that or could know that. f. Ms. Lovric believes that Daneen is working as a dog-walker and house sitter, and is worried about her potential exposure to COVID-19 through her work. Mr. Olson says Daneen no longer does those jobs. He says she is an education assistant and works from home. Ms. Lovric does not accept Mr. Olson’s statements that Daneen’s dog-walking and house sitting jobs are historical. She says Daneen’s availability for dog-walking was posted online as recently as March 23, 2020. g. Ms. Lovric makes various allegations of historical poor parenting by Mr. Olson. Mr. Olson says these allegations are “exaggerated or incorrect.” h. Ms. Lovric is very worried about minimizing risk for B. from a health perspective in a context where he has longstanding respiratory issues; where risks arise not from two households but from three or four (Ms. Lovric’s home, Mr. Olson’s home, Daneen’s home, and Daneen’s children’s father’s home); and where she believes that Daneen is exposed to risk from working in the community. i. Ms. Lovric believes that in light of B.’s health issues, “the circle surrounding my son needs to be kept as small as possible in order to ensure his safety.”

Legal Principles on Urgency and COVID-19

[9] The Notice to the Profession issued by the Chief Justice provides that urgent matters may include matters related to the safety of a parent or a child, or urgent issues related to the wellbeing of a child.

[10] In Ribeiro v. Wright, 2020 ONSC 1829, released March 24, 2020, Pazaratz J. set out principles to aid in the determination of urgency with respect to parenting issues 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 factors through employment or associations, may require controls on direct contact of 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.

[11] 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.

[12] There may also be may risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments.

[13] In Thomas v Wohleber, 2020 ONSC 1965, at paragraph 38, Kurz J. provided guidance on what constitutes urgency at the present time:

1. The concern must be immediate; that is one that cannot await resolution at a later date.
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children.
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[14] See also Balbontin v. Luwawa, 2020 ONSC 1996, in which Jarvis J. made the following comments regarding how courts expect parents to conduct themselves during these very unusual and difficult times:

All levels of government in Canada, national, provincial and local have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant.

[emphasis in original]

Urgency Determination and Next Steps

[15] In my view, applying the Notice to the Profession and the developing caselaw, the motion brought by Ms. Lovric is urgent. If B.’s respiratory issues are serious as alleged by Ms. Lovric, ensuring that the applicable precautions are established maintained (if they are not already) to ensure B.’s health and safety is an immediate and serious concern that relates directly to his safety and well-being. This may be a case where “modifications”, as set out by Pazaratz J., could be appropriate, although no such determination is being made at this time.

[16] This motion should be heard on the merits, on proper affidavit materials from both parties. Such materials will hopefully shed clarity on B.’s health circumstances, on the current parenting arrangements, and on what steps are being taken in each household to ensure B.’s safety and well-being in light of his current health circumstances. I note that on the evidence it may very well be that the steps being taken by Mr. Olson are sufficient. However, on the current record received by the court for the purpose of the urgency determination only, the court is unable to reach that conclusion.

[17] Accordingly, I direct the following steps in this matter:

a. Ms. Lovric shall have until Friday, April 17, 2020 at 4:00 p.m. to file a fresh affidavit in support of her motion, to which any exhibits shall be attached; b. Mr. Olson shall have until Tuesday, April 21, 2020 at 4:00 p.m. to file a proper responding affidavit, to which any exhibits shall be attached; c. Ms. Lovric shall have until Thursday, April 23, 2020 to file a reply affidavit if necessary. d. All affidavits shall, at a mininum, be signed by the parties. If the parties are unable to have their signatures commissioned before filing their materials, they will be required to swear an oath or affirmation when the matter is heard. e. All materials shall be filed at Kitchener.Superior.Court@ontario.ca with the style of cause and file number in the subject line of the email. Service of all materials related to this motion may be by email between counsel. f. This motion will be heard by teleconference on Friday, April 24, 2020 at a time to be set by the Trial Coordinator and communicated to the parties by email.

Further Recommendations

[18] The parties are both encouraged to consult Legal Aid Ontario in the event that they may qualify for duty counsel’s assistance. The phone number is 519-578-4561.

[19] The parties are also encouraged to consider mediating this issue in advance of the motion date. 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 court has been advised that confidential distance mediation options are available at this time. The parties are encouraged to contact AXIS Mediation for assistance in developing a plan that maintains the child’s relationship with both parents and succeeds in putting the child’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.

Administrative Matters

[20] Court staff are requested to serve both counsel with a copy of this endorsement by email.

[21] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.

L. Madsen, J DATE: April 14, 2020