NEWMARKET COURT FILE NO.: FC-17-54309 DATE: 20200417 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: David Michael Matus, Applicant AND: Luiza Gruszczynska, Respondent
BEFORE: The Honourable Justice H. McGee
COUNSEL: L. Mendlowicz, Counsel for the Applicant C.M. Murphy, Agent for the Respondent
HEARD: Electronically on April 16, 2020
RULING ON MOTIONS
Two 14B Motions Served April 14, 2020
[1] Within 24 hours, each party served a 14B motion:
(a) Mr. Matus asks the court to grant leave for an urgent motion because Ms. Gruszczynska is in breach of the parenting terms of their September 20, 2018 Order. Since March 16, 2020 she has refused to allow “M”, their three-year-old daughter to be with her father, a chef who is an essential worker in a facility that is observing comprehensive COVID-19 protocols. If his motion for an urgent hearing is granted, Mr. Matus will ask for the resumption of parenting time and as necessary, an Order for police enforcement.
(b) In response, Ms. Gruszczynska asks for an urgent motion to suspend access. Believing that their daughter is particularly vulnerable to the virus, she asks that Mr. Matus’ parenting time be ended until she is personally satisfied that he is following all the safety guidelines set out in relation to the COVID- 19 virus.
[2] The following factors are necessary to a finding of urgency, as set out in Thomas v. Wohleber, 2020 ONSC 1965:
a. The concern must be immediate; that is one that cannot await resolution at a later date;
b. 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;
c. 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;
d. 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.
[3] Ms. Gruszczynska bears the onus in this inquiry. There is a presumption that all court Orders should be respected and complied with, see: Tessier v. Rick, 2020 ONSC 1886. A parent is not permitted to simply engage in self help, or to interpret public health directives as a licence to terminate parenting time.
[4] It is open to me to simply find that Ms. Gruszczynska has not met the standard of urgency and that the parenting terms of the September 20, 2018 Order stand. It is equally open to me to dismiss the request for police enforcement because there has been no notice, see: Patterson v. Powell, 2014 ONSC 1419, 2014 CarswellOnt 2627. Notice strikes me as particularly important during a period in which police service priorities have been refocussed.
[5] For the reasons that follow, I do find the motions to be urgent because they meet the test in Thomas v. Wohleber. This parenting dispute is complex. On September 25, 2019 I found Ms. Gruszczynska in contempt for breaching court ordered parenting terms. The Disposition Hearing is currently scheduled for June 11, 2020. The challenges of COVID-19 have amplified that complexity.
BACKGROUND
[6] “M” was born in the fall of 2016. The parties separated in April of 2017. For the next six months, Ms. Gruszczynska allowed “M” only two or three visits with her father each month, none more than two hours, and all supervised by her. During this initial period, Mr. Matus resolved to work with his daughter’s mother, to ease her anxiety and build trust. He was not successful.
[7] Mr. Matus launched this Application and obtained an October 27, 2017 urgent Case Conference date on the parenting issues. At the conclusion of the Conference the parties agreed on a temporary and without prejudice expansion of access.
[8] A further consent followed a full Case Conference held on May 10, 2018 before Justice MacPherson. In that consent, overnight access was to begin on Monday, September 23, 2018. On Friday September 20, 2018 Ms. Gruszczynska brought an urgent motion to stop the overnights. Her motion was dismissed, new parenting terms were put in place that set a regular schedule of overnights, and Ms. Gruszczynska was ordered to pay costs. The overnights normalized, and the situation appeared to stabilize.
[9] The next period of parenting disruption took hold in April of 2019. Ms. Gruszczynska intermittently began refusing to transfer their daughter’s care to the father. She completely withheld their daughter from June 30, 2019 until August 4, 2019, leaving Mr. Matus few legal options but to bring a contempt motion.
[10] I heard that motion on September 25, 2019 and found that Ms. Gruszczynska was engaging in transparent gatekeeping behaviours that were designed to eliminate “M’s” father from their life. I stated in my Reasons for Decision, “M” cannot reside with a parent who is consistently trying to remove her other parent from her life." I made a finding of contempt but prior to disposition, gave Ms. Gruszczynska an opportunity to purge her contempt by complying with the September 20, 2018 Order for parenting. I also requested the assistance of the OCL, which was granted.
[11] I read in Mr. Matus’ materials that the assigned OCL clinician had some initial difficulty connecting with Ms. Gruszczynska. Regardless, an OCL disclosure meeting was eventually scheduled for April 6, 2020. The disclosure meeting was then deferred due to the COVID- 19 suspension of regular court operations.
[12] Since March 16, 2020, Ms. Gruszczynska has again disrupted “M’s” relationship with her father by refusing any in-person contact. To support her actions, she has consulted with various physicians, one of whom simply wrote in a note – upon which Ms. Gruszczynska relies as clinical evidence - the concerns expressed by the mother as to “M’s” unique vulnerability to the virus, and her need for total isolation.
Analysis of Urgency
[13] We are now in the fifth week of an unprecedented suspension of regular court operations that began on March 15, 2020. Public health information and directions have and can continue to shift, sometimes rapidly. Families are under stress, and parents have good reason to be anxious and cautious.
[14] It is inspiring to see so many parents and family law counsel working harder, smarter and more collaboratively to make things work during this crisis; and to heed the sage advice of Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829 because “children’s lives – and vitally important family relationships – cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset.” As Justice Pazaratz goes on to say, in these “troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”
[15] Parenting is an essential service.
[16] This period of crisis will pass, and when we look back, families will have a story to tell. No one will ever forget how they spent the pandemic. Even very young children will carry the residual emotions well into adulthood. There will be a time to reflect. Did parents step up to ease fear and disruption in their child’s life, or were they preoccupied by their own needs? Did they take a balanced approach to their child’s overall interests, or did they seize upon a perceived advantage? Did they react to past patterns, or did they plan for a better future?
[17] During this period of suspension, judges must apply a stringent test of urgency when deciding which matters are to proceed. Limiting the cases that can be heard not only manages workload; it recognizes that only the most urgent decisions should be made without the benefit of a full court file, and more importantly, without full access to the many resources that are inextricably intertwined with good outcomes: parenting education, mediation, clinical assessment and assistance, mental health and counselling supports.
[18] Limiting the cases to be heard also recognizes certain practical realities. As set out in Justice Madsen’s decision of Onuoha v. Onuoha, 2020 ONSC 1815, an urgent motion should not proceed when there is no realistic outcome, such as a parent’s request to travel with a child during a period of a travel ban. Here, practicality is at issue with Mr. Matus’ request for police assistance. How does one address a child’s risk of exposure to the virus in the back of a police cruiser?
[19] Limiting court access will amplify the many, and understandable worries of separated parents. Will their concerns be heard? Will temporary situations become permanent?
[20] It bears observing that although COVID-19 restrictions are dramatically upsetting the status quo, they do not constitute a material change in circumstances because they are temporary. When public health restrictions are lifted there will be no new advantage held by a withholding parent, whether or not the withholding was justified. The test will remain the best interests of the child.
[21] Decisions of this court since the March 15 Notice to the Profession affirm the importance of children maintaining contact with both parents during the current crisis. In my view, young children in the attachment phase of development are particularly vulnerable to the harmful effects of removing a care giving parent. Young children who have already experienced disruptions in their parenting are even more vulnerable.
[22] I find that “M’s” circumstances meet the test for urgency and I grant leave for either party to bring a motion after a Case Conference in which the OCL is invited to participate.
[23] The Conference will be conducted as a teleconference, to be scheduled through the Trial Coordinator. The Conference will be 60 minutes in length and the requirement for Briefs is dispensed. Each party is to serve and file by email, a Form 17F Confirmation which may attach up to three pages of proposals to safeguard and strengthen the father-daughter relationship during this short-term period of COVID- 19 restrictions and for the long-term going forward.
[24] Counsels are to provide a copy of this Endorsement to the OCL and to inquire as to whether the clinician is prepared to conduct a disclosure meeting by telephone prior to the Conference.
[25] If the matter does not resolve, the Case Management Justice may determine in his discretion the manner of hearing the motion and a timetable for the exchange of any further supporting materials or amended Notices of Motion.
[26] Parties should be prepared to address whether there are any additional precautions that the father might take to insure “M’s” safety, whether it is in “M’s” best interests to reside with her father for an extended rebalancing period during or after the COVID- 19 period, and if so, when he might be in a position to do so, given his employment obligations. Parties should also consider a timeline for the outstanding contempt disposition in the event that courts have not resumed normal operations by June 11, 2020.
[27] Counsel having commissioned the affidavits by observing the deponent on videoconference is validated.
[28] Service by one party on the other of the materials to date by email is validated. Service by email will continue to be permitted so long as regular court operations remain suspended.
[29] Costs of this motion are reserved.
McGee J.