COURT FILE NO.: FS-18-13182 DATE: 20200424 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jeannot Joseph Berube, Applicant AND: Heather Berube, Respondent

BEFORE: Howard J.

COUNSEL: Kenneth W.J. Rhodes, for the Applicant George F. McFadyen, for the Respondent

HEARD: Written submissions

Endorsement

Overview

[1] This is further to my endorsement in this matter released April 9, 2020. [1]

[2] The respondent mother, Heather Berube, has brought a motion on an urgent basis, seeking to establish parenting arrangements for the parties’ youngest child, Stewart Joseph Mason Berube, born July 9, 2009, who is currently ten years of age.

[3] The matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed. In my endorsement of April 9th, I made a presumptive finding that, on the materials then before me, the respondent mother had made out a case of urgency subject to the court’s discretion to re-visit that question once I had received materials from the applicant father.

[4] I have now received and reviewed, inter alia, the following materials:

a. The respondent mother’s notice of motion dated April 8, 2020; b. The respondent mother’s affidavit sworn April 8, 2020, and the exhibits attached thereto; c. The applicant father’s responding affidavit sworn April 16, 2020, and the exhibits attached thereto; d. The respondent mother’s reply affidavit sworn April 20, 2020, and the exhibits attached thereto; and e. The applicant father’s sur-reply affidavit sworn April 22, 2020 (not that a sur-reply affidavit was contemplated by my April 9th endorsement). [2]

[5] There is nothing in any of the subsequent affidavit material filed that causes me to believe that my presumptive finding of urgency must now be modified, qualified, or set aside. To confirm, I remain of the view that the motion before the court is an urgent matter within the meaning of the Notice to the Profession, justifying that it be heard during the suspension of the court’s regular operations.

[6] In paras. 16-17 of my April 9th endorsement, I advised the parties that once all materials were delivered, I would determine the manner of hearing of the instant motion. I also advised that counsel should prepare their written material on the basis that the court may well determine the issues based on their written material only.

[7] Given the very narrow issues on this motion, and given the substantial material that both parties have now filed, I am satisfied that the motion can be appropriately conducted by way of a “paper hearing” and, further, that deciding the motion on the basis of the written material filed would secure the just, most expeditious, and least expensive determination of the issues in question.

Factual background

[8] The parties have four children: (a) the eldest daughter, Dianne, who is now 20 years of age; (b) the younger daughter, Samantha, who is 18 years of age; (c) the eldest son, Sean, who is 16 years of age; and (d) the youngest son, Stewart.

[9] The three older children are not central to the instant motion. The relief sought by the respondent mother relates only to the youngest child, Stewart.

[10] The evidence indicates that the parties’ relationship was “intense and problematic.” [3] There were many contacts with the police and, according to police reports, “domestic violence was identified as a primary source of concern in the Berube relationship.” [4] It is common ground that the couple separated numerous times, and the children were repeatedly exposed to the adult conflict. The parties separated in 2014. Post-separation, the communication between the parties remained “very conflictual” and “problematic for numerous years. … All of the children are aware of the conflict and have experienced the negative impact.” [5]

[11] At present, the respondent mother resides with her current partner (Mr. Jeff Kelly), Samantha, and Mr. Kelly’s teenage son from a previous relationship. Samantha has been in her mother’s full-time care since January 2016.

[12] The applicant father resides with his current partner (Ms. Tammy Demers), Dianne, Sean, and Stewart.

[13] The evidence indicates that the children, with the notable exception of the youngest child, have each aligned themselves with one parent over the other. Dianne and Sean, residing with their father, do not have any contact with their mother or, sadly, even their sister, Samantha. Similarly, Samantha, residing with her mother, does not have contact with her father or her other two siblings.

[14] To his credit, the exception to this alignment with the parental conflict appears to be the youngest child, Stewart, who has contact with both parents.

[15] In this regard, I note the interim parenting arrangements for the four children that were established by the parties’ interim minutes of settlement, and which were then codified in the temporary order of Hebner J. dated October 24, 2016. Under that order, it was ordered that the interim residence of Dianne and Sean is with their father, with access to their mother in accordance with the wishes of the children, and the interim residence and custody of Samantha is with her mother, with access to her father in accordance with her wishes.

[16] With respect to the youngest child, para. 9 of that same interim order of Hebner J. dated October 24, 2016, provided that, on an interim and without prejudice basis, the primary residence of Stewart is with the applicant father, and the respondent mother is to have access three weekends out of every four, from Friday at 4:00 p.m. to Monday morning at return to school, together with a mid-week visit every Wednesday from 4:00 p.m. to 7:00 p.m.

[17] That said, the evidence indicates that, as a result of a job-change of the respondent mother, the parties agreed to change the respondent mother’s access with Stewart to alternate weekends from Friday at 5:30 p.m. to Sunday at 8:30 p.m. The parties agreed to keep the mid-week access every Wednesday but changed the time period to make it from 5:30 p.m. to 8:30 p.m.

[18] The evidence of the respondent mother is to the effect that the parties continued to abide by those interim parenting arrangements concerning Stewart until March 2020. The evidence of the applicant father is consistent with that, and certainly the father’s evidence does not challenge or contradict the mother’s evidence on this point.

[19] Indeed, the evidence of the applicant father as set out in his sur-reply affidavit sworn April 22, 2020, goes further and expressly confirms, in para. 15, that: “[s]ince the Respondent and I have agreed on her having access every Wednesday and alternating weekends, this specific access has occurred, without failure, prior to the COVID-19 pandemic.” [Emphasis in the original.] In the same vein, in para. 17 of that same affidavit, the applicant father states that: “I have never denied access to the Respondent, at our agreed-up[on] tines, namely, on Wednesdays, or on alternate weekends.” To the same effect is para. 19 of sur-reply affidavit.

[20] In my view, it is clear, and I find, that the status quo that existed prior to the onset of the COVID-19 pandemic was that the respondent mother had parenting time with Stewart in accordance with the arrangements that both parents had agreed upon, namely, alternate weekends from Friday at 5:30 p.m. to Sunday at 8:30 p.m., and every Wednesday from 5:30 p.m. to 8:30 p.m.

[21] I would also note that on June 14, 2017, the Office of the Children’s Lawyer delivered a report under s. 112 of the Courts of Justice Act, [6] in which it was recommended that the respondent mother have sole custody of Stewart, that he reside with his mother, and that the applicant father have access with Stewart three weekends out of four and mid-week access.

[22] The respondent mother served a motion seeking interim custody of Stewart on March 19, 2020. (It is not clear on the material before me – and I would note that I do not have access to the court record – why a period of well over two-and-a-half years elapsed after the release of the O.C.L. Report before the mother served her motion for interim custody of Stewart.)

[23] In any event, the evidence of the respondent mother is that it was only after service of her motion for interim custody that there arose significant departure from the agreed-upon parenting arrangements concerning Stewart and the respondent mother’s regular social media contact with the youngest boy “evaporated.”

[24] During the week of March 23, 2020 – after, I would note, the suspension of the court’s regular operations – the applicant father advised the respondent mother that he was no longer going to allow Stewart to have access with the mother in accordance with either the parenting arrangements that the parties themselves had agreed upon and had been following for some years or the terms of the temporary order of Hebner J.

[25] On the face of the materials, it would appear that the applicant father’s refusal to permit access was prompted, at least in part, by the COVID-19 pandemic, the father’s views of what social isolation requires, and his concerns for the safety of Stewart. The father stated, “I’m being cautious for my son’s health.”

[26] As a result of the unilateral decision of the applicant father to withhold Stewart from his mother, the respondent mother has now missed access with Stewart on (at least) the following days:

a. Mid-week access on Wednesday, March 25th; b. Weekend access on March 27th, 28th, and 29th; c. Mid-week access on Wednesday, April 1st; d. Mid-week access on Wednesday, April 8th; and e. Mid-week access on Wednesday, April 15th.

[27] Contrary to the respondent mother’s initial expectations (as reflected in my April 9th endorsement), it appears that the applicant father did permit the respondent mother to have her scheduled access with Stewart on the Easter weekend of April 10-12, 2020.

[28] I note from the responding and reply affidavit material that there was a bit of a hiccup with the access visit on Easter Sunday, April 12, 2020. However, I do not think anything turns on this minor incident. I accept the explanation provided by the respondent mother, as set out in paras. 16-23 of her reply affidavit. Nothing about that minor incident is determinative of the issues on the instant motion.

Analysis

The emerging caselaw in family law matters during the COVID-19 pandemic

[29] There has now been a sufficient number of judicial decisions released in family law cases during the COVID-19 pandemic so as to permit one to extract certain general principles.

Cases involving multiple claims for relief

[30] A number of decisions released during the court’s suspension of regular operations in reaction to the COVID-19 pandemic have involved cases where a variety of different claims for relief were presented to the court. The approach of the court in such cases has been to consider whether each claim for relief is urgent within the meaning of the Notice to the Profession in its own right. The court has distinguished between those claims that are truly urgent and should proceed to swift determination and those claims that present no real urgency and no legitimate claim to the court’s extremely limited resources during this extraordinary period of the suspension of the court’s regular operations.

[31] In other words, it is not the case that where, for example, a moving party raises six different claims for relief and only one such claim is considered to be urgent that the court will proceed to determine the other five non-urgent requests just because they arise out of the same factual circumstances and/or are advanced within the same motion. A non-urgent claim for relief cannot bypass the urgency requirement just because it is “piggy-backed” onto a genuinely urgent issue. Each claim is to be separately considered on its own merits to determine whether it meets the urgency threshold.

[32] Thus, for example, in Hadley v. Hadley, the father brought an urgent motion asking the court to grant him sole custody and primary residence of the parties’ three-month-old infant and to restrict the mother to supervised access only on the grounds that, as the father alleged, the mother suffered from serious mental health issues. In distinguishing between the various claims, Madsen J. held that the “determination, on a temporary basis, of the residency of the child” and the “determination of parenting time for the mother and, if so, any conditions which may be appropriate to ensure the safety and well-being of this infant” were potentially urgent issues at the triage stage but that the “determination of the ‘custody’ of the child is not required on an urgent basis.” [7]

[33] In the same vein, in Tessier v. Rick, the mother refused to let the father have his court-ordered access with the parties’ three-year-old child because the mother was concerned that “the father’s household [was] not abiding by the social isolation directives of public health authorities [and was] minimizing the risks posed by COVID-19.” [8] MacEachern J. held that the father’s motion to require the mother to comply with the access order was urgent but that the father’s companion request for make-up access was not urgent. [9]

The court’s expectations of parents during the COVID-19 pandemic

[34] As referenced, over the last six weeks during which the regular operations of the court have been suspended, the court has released an abundance of decisions about the impact of the COVID-19 pandemic on existing parenting arrangements and the standard of behaviour that the court expects of parents during this crisis.

[35] In Ribeiro v. Wright, one of the earlier decisions to address the court’s expectations of parents during the pandemic, the mother brought an urgent motion to suspend the father’s access because of her concerns about the COVID-19 threat. On the evidence filed, the court was not satisfied that the concerned mother had “established a failure, inability, or refusal by the father to adhere to appropriate COVID-19 protocols in the future.” [10]

[36] In the course of his reasons, Pazaratz J. articulated the notion that in most cases there will be a presumption that existing parenting arrangements and schedules should continue during the pandemic, subject only to such modifications as are necessary to comply with the applicable public health directives. Justice Pazaratz explained how this presumption is grounded on a comprehensive consideration of the best interests of the child, as follows:

Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to - including strict social distancing.

Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

Each family will have its own unique issues and complications. There will be no easy answers.

But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely. [11]

[37] Justice Pazaratz went on to suggest an approach that the court – and parents – should take in approaching urgent motions:

If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.

We will deal with COVID-19 parenting issues on a case-by-case basis.

a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour 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. [12]

[38] The analysis of Pazaratz J. in Ribeiro v. Wright was adopted by Mitrow J. in Chrisjohn v. Hillier. In Chrisjohn, there were court orders in place that provided that the parties’ two-year-old child would primarily reside with the father and the mother would have specified access. In breach of the orders, the mother withheld the child from the father, citing concerns that the father was not faithfully following appropriate COVID-19 protocols. In ordering the mother to comply with the regular parenting schedule, Mitrow J. held as follows:

It is trite that in Ontario and elsewhere in Canada that there are many families where parents are living separate and apart and the children spend parenting time with each parent either pursuant to a court order, a separation agreement or an informal arrangement between the parents. In each case, parents must act responsibly in the face of the COVID-19 pandemic to ensure that their children are adequately protected.

This should not result in a widespread suspension of in-person parenting time between a child and one of his or her parents. Each circumstance is unique, and the parents will need to act reasonably in promoting the best interests of their children in relation to parenting time.

I find helpful, and I adopt, the discussion of this issue by Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829 (S.C.J.), in particular at para. 20, stating that parents should not presume that the existence of COVID-19 will automatically result in the suspension of in-person parenting time. [13]

[39] In the same vein is the succinct statement of the court in Cooper v. TenEyck, where Madsen J. held that:

There is no presumption that COVID-19 permits a primary residential parent to terminate the children’s time with the other parent. These parents should work together to make any adjustments needed to fit the current public health circumstances. [14]

[40] The factual circumstances in the instant case are broadly similar to those in Skuce v. Skuce, where the parties had come to an agreement concerning the parenting arrangements for their children, which agreement was reduced to writing in executed minutes of settlement, and subsequently incorporated into a consent interim order. Under those arrangements, the father was to have in-person access with the children supervised by the mother. Subsequently, the mother developed concerns because of the COVID-19 pandemic and, prompted by her belief that the father would not be compliant with self-isolation protocols, attempted to resile from the parties’ agreed-upon parenting arrangements. In granting the father’s emergency motion seeking compliance with the arrangements, Doyle J. held that, “the onus is on the mother to satisfy the Court that this parenting plan is no longer in the children’s best interests and that the children would be at risk if this access was implemented.” [15]

[41] In the course of her reasons, Doyle J. went on to provide a thoughtful, child-focused explanation of the importance of maintaining consistency with respect to agreed-upon parenting arrangements, which I find instructive for present purposes:

Parents are encouraged to maintain their children’s routine and scheduling to ensure that their contact with their parents is not disrupted if at all possible. Their lives are already significantly disrupted due to no schooling, lack of organized activities, no March break activities and cancellation of businesses, social events, concerts etc.

The one aspect that is important for the children is that the parents/caregivers who are in their lives and who have been deemed to be individuals who are entitled to contact with their children should continue to maintain their relationship.

Children will benefit from being nurtured and comforted by both parents who have been part of their lives. This routine should only be disrupted if evidence has been established that the children’s health and safety are at risk. [16]

[42] With these principles in mind, I turn to consideration of the appropriate parenting arrangements for Stewart.

Appropriate interim parenting arrangements for Stewart

[43] With the delivery of the applicant father’s sur-reply affidavit, I infer that it is now common ground that the status quo that the parties had established in connection with their agreed-upon parenting arrangements for Stewart should be codified in a court order. As reflected in her notice of motion, the respondent mother seeks an order “establishing the alternate-weekend access regime.” For his part, the applicant father has now delivered a sur-reply affidavit, to which is attached a draft order that expressly sets out the alternate-weekend access regime. It is plain that the parties themselves have, at least implicitly, agreed that a court order should issue.

[44] I agree that the parties agreed-upon parenting arrangements should be expressly reflected in a court order. In my view, there needs to be certainty – for the sake of all persons involved, including Stewart – as to the governing parenting arrangements. That will also serve to provide everyone with a clear understanding of the court’s expectations during the COVID-19 pandemic. Hopefully, it will also serve to minimize the potential for future conflict between these parents, and that will also serve Stewart’s best interests.

[45] Having delineated the primary objective of this motion, I would add a word about what I am not addressing on this motion. To be clear, I am not dealing here with the respondent mother’s pending motion for interim custody of Stewart and the related claim for child support. That may appear to state the obvious; however, on my review of the affidavits delivered, much of the material – particularly the respondent mother’s reply affidavit and the applicant father’s sur-reply affidavit – seem to be occupied with the larger question of custody of Stewart. The parties appear to have some difficulty extricating themselves from a seeming obsession with the past, their history of their dealings, and the question of “who did what to whom?” For present purposes, I am not so much concerned with the past; it is more important that the parties re-focus their attention on the parenting arrangements for Stewart on a go-forward basis.

[46] I would also note that I am not particularly concerned with the issue of attempted contact between the lawyers’ offices prior to the filing of the instant motion. Again, I mention that issue only because it consumes a significant portion of the parties’ respective affidavits.

[47] That said, I would comment on some of the apparent issues or objections to the respondent mother’s parenting time with Stewart, as raised in the affidavit material.

[48] I note the applicant father’s position, as reflected in para. 15 of his sur-reply affidavit, that ever since the time that the parents agreed on the current arrangements for the respondent mother’s parenting time with Stewart on alternating weekends and mid-week access every Wednesday evening, “this specific access has occurred, without failure, prior to the COVID-19 pandemic.”

[49] For present purposes, I do not take issue with the father’s position, and I do not find it necessary to determine whether the “without failure” claim is accurate. However, I would comment on the situation after the COVID-19 pandemic arose.

[50] In this regard, the evidence indicates that the mid-week access on Wednesday, March 25, 2020, did not occur because the applicant father had raised concerns about the coronavirus, and the respondent mother (at that point not yet having had an opportunity to consult with her lawyer) appeared to acquiesce. However, on Thursday morning, March 26, 2020, the respondent mother texted the father to advise that she had spoken with her lawyer, and she was intent upon picking up Stewart on the Friday evening for her regularly scheduled weekend.

[51] The response that the applicant father sent, by return text the next day, on Friday morning, March 27, 2020, was that:

My Lord said no way now you’re trying to put Stewart in danger on catching this virus its isolation and hes at home hes not going anywhere and no hitter at set I’m being cautious for my son’s health and my lawyer agrees with me and he says no way

[52] I will simply say that the response of the applicant father provided no valid reason why Stewart should not have his regular scheduled access with his mother that weekend. Again, as Pazaratz J. said in Ribeiro v. Wright, it was incumbent on the father to provide “specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols.” There was none of that in the applicant father’s text response. Moreover, I do not accept the suggestion that the applicant’s lawyer advised him that his position was sound; nor do I accept that the applicant father “misspoke” on this occasion. Rather, I accept the characterization set out in paras. 33-34 of the respondent mother’s reply affidavit. [17]

[53] The other explanation apparently offered by the applicant father for impeding access with the respondent mother is that on Friday, April 10th, when Stewart went to his mother’s for his regularly scheduled weekend access on the Easter weekend, there were nine persons in the respondent mother’s home that day. [18] That suggestion is expressly denied by the respondent mother, whose evidence is that there was “never a situation when there were nine people in my residence during any time that Stewart was there, or otherwise, and I was never in violation of any of the restrictions concerning the gathering of people.” [19]

[54] For present purposes, I need not resolve this inconsistency in the evidence, given especially that the position of the applicant father is that there should be an interim order codifying the status quo parenting arrangements.

[55] That said, I would simply note that any alleged failure of the respondent mother to abide by public health restrictions on April 10, 2020, would obviously have not been in existence or even known to the applicant father at the time when he decided to deny access to the mother on March 25th, 27th, 28th, 29th, April 1st, and 8th. Even if true, the alleged violation by the mother on April 10th cannot justify the father’s prior repeated withholdings of the child.

[56] I would also note that there is an emergency order in place, issued under s. 7.0.2 (4) of the Emergency Management and Civil Protection Act, [20] that prohibits a social gathering of more than five people even if it is held at a private dwelling, unless those in attendance at the gathering are members of a single household. [21] That emergency order is in place until, at least, May 6, 2020, and may be extended beyond that date.

[57] The final explanation offered by the applicant father for the missed parenting time is that, he says, Stewart did not want to go to his mother’s. For example, in para. 36 of his responding affidavit, the applicant father states that, “I have absolutely no problem in allowing his mother make up time, for those missed visits, as long as that is what Stewart wants …” Stewart is a ten-year-old boy. It is not for him to make such decisions. A child of that age should not be put in the position of having to decide whether he will or will not attend access visits. The issue of parenting time is an adult decision and should not involve a ten-year-old child having de facto control.

[58] On this point, I would remind the applicant father that he is under a legal duty to promote Stewart’s access with the respondent mother. The Ontario Court of Appeal has made it clear that every parent has a positive obligation to ensure that a child continues to have access to the other parent.

[59] In Godard v. Godard, there was a court order providing the father with access every second weekend to the parties’ 12-year-old daughter. After having been denied any contact with his daughter for some time, the father brought a contempt motion against the mother. The motion judge found the mother in contempt of the access order, finding that the mother had “effectively abdicated her parental authority on the issue of access.” [22]

[60] On appeal, the Court of Appeal upheld the motion judge’s finding of contempt and held that:

Although a child’s wishes, particularly the wishes of a child of [the 12-year-old daughter’s] age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, [2008] O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349 (Ont. S.C.J.); Stuyt v. Stuyt, [2009 CarswellOnt 3432 (Ont. S.C.J.)]; Stuyt v. Stuyt, [2009 CarswellOnt 3432 (Ont. S.C.J.)]; and Hatcher v. Hatcher, [2009] O.J. No. 1343 (Ont. S.C.J.).

No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order.” [23]

[61] In sum, there being no valid reason for the applicant father to have denied the respondent mother her parenting time with Stewart, I find that the mother is entitled to make-up access time. Moreover, as I have said, the applicant father, to his credit, has indicated that he consents to the mother having that make-up time.

[62] On the question of transportation for the purpose of facilitating the respondent mother’s parenting time, I believe there is some value in clarifying those responsibilities in an order. While I note the invitation of the respondent mother that the applicant father is at liberty to assume the transportation responsibilities, I recall that para. 9 of the interim order of Hebner J. dated October 24, 2016, provides that the mother “shall do the transportation personally.” While it appears that is no longer possible, as the evidence of the respondent mother is that she is unable to drive as a result of a medical condition, the primary responsibility should remain with the respondent mother.

[63] The applicant father has indicated that he is aware that the mother needs someone to do the driving to pick up and drop off Stewart, and the father is agreeable to having the mother’s current partner, Jeff Kelly, or his son, Jake, do the driving, but not other individuals who do not reside with the respondent mother.

[64] In view of the current public health restrictions, there is merit in the applicant father’s position. The respondent mother should continue to be responsible for making the transportation arrangements for Stewart, but the actual driving may be done by Mr. Kelly, or his son, or if Samantha is a licensed driver, she may assist also. However, it should be limited to persons residing within the same household as the mother.

Other issues

[65] I have concluded that the respondent mother is entitled to make-up access. However, the question as to when that make-up access should actually occur is not an urgent issue for present purposes. Given that each party has the benefit of being represented by very experienced legal counsel, I have every faith and expectation that the parties, through counsel, will be able to resolve the question of make-up access. If not, it may be discussed at a case conference.

[66] The respondent mother’s notice of motion seeks a police enforcement clause. Such a draconian clause is to be reserved for only the most rare and extraordinary situations. That is not the case here.

[67] The applicant father obliquely raised the question of the outstanding arrears of child support said to be owed by the respondent mother, as reflected in para. 6 of his responding affidavit. Apart from the fact that there is no proper notice of motion before the court advancing any claim of the applicant father on the issue, I do not regard the issue of outstanding child support arrears to be urgent for present purposes.

[68] The same considerations apply to the respondent mother’s request for her costs of this motion. The question of costs of the motion is not an urgent matter. As indicated above, the practice established by such cases as Hadley v. Hadley and Tessier v. Rick indicates that simply because one aspect of a motion may be determined to be urgent, that does not mean that all other necessarily entailed aspects of that same motion are also urgent. The respondent mother’s claim for costs can be dealt with in due course, if counsel are unable to resolve the issue themselves.

[69] This matter should proceed to a case conference.

Conclusion

[70] For all of these reasons, there shall be a temporary order that:

a. Paragraph 9 of the temporary order of Hebner J. dated October 24, 2016, is set aside and the following replaced therefor:

i. The child of the relationship, Stewart Joseph Mason Berube, born July 9, 2009 (“Stewart”), shall reside with the respondent mother, Heather Berube, on alternate weekends, from Friday at 5:30 p.m. to Sunday at 8:30 p.m. commencing Friday, April 24, 2020.

ii. Stewart shall reside with the respondent mother, Heather Berube, every Wednesday, from 5:30 p.m. to 8:30 p.m.

iii. At all other times, Stewart shall reside with the applicant father, Jeannot Joseph Berube.

iv. The respondent mother, Heather Berube, shall be responsible for making appropriate transportation arrangements in order to facilitate her parenting time with Stewart, provided that the driver-operator of any motor vehicle employed for such purposes shall be limited to a licensed driver residing within the same household as the respondent mother.

b. All other terms of the temporary order of Hebner J. dated October 24, 2016, remain in full force and effect.

[71] The applicant father and respondent mother, and their privies, shall abide by the following non-disparagement orders, and, in particular:

a. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage any third person to do so in the presence of the children or any one of them. Neither parent shall post any disparaging or negative comment about the other parent in social media platforms.

b. Neither parent shall discuss with the children or any one of them, or with any third person in the presence of any one of the children, any present or past legal proceedings or any issue between the parties related to any present or past legal proceedings, including any issue relating to the parenting of the children, the breakdown of the parties’ relationship, the conflict between the parties, or financial matters consequent to the breakdown of the parties’ relationship.

c. Neither parent shall leave out or make accessible to the children, or any one of them, any information, document, or electronic file pertaining to any issue arising from the parties’ separation and divorce, and neither party shall permit the children, or any one of them, access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the children shall not have access to information regarding the parties’ separation and divorce by password-protecting any area of their personal computers or related devices that hold such information.

d. Neither parent shall do anything that would estrange the children, or any one of them, from the other parent, injure the opinion of any child as to their mother or father, or impair the natural development of the children’s love and respect for each of their parents.

[72] The respondent mother is entitled to make-up access. If the parties are unable to resolve that issue, it should proceed to a case conference.

[73] All parties, and with their help, their children, shall abide by all emergency orders issued under the Emergency Management and Civil Protection Act and all precautionary measures recommended by governments and health authorities in Ontario and Canada. Neither party shall do anything that will expose himself or herself or their children to an increased risk of contracting the COVID-19 virus.

[74] I find that all other claims for relief of the parties do not constitute an urgent or emergency matter within the meaning of the Notice to the Profession issued March 15, 2020.

[75] This matter should proceed to a case conference.

[76] If the parties are both of the view that this matter falls within the parameters for holding a case conference as set out in the Notice to the Profession – Expansion of Matters to be heard in the Southwest Region, issued April 2, 2020, they may request through the Trial Coordinator that a case conference be scheduled, failing which the matter is adjourned to Monday, June 8, 2020, at 10:00 a.m. to be spoken to in order to set a date for a case conference.

[77] The issue of costs of this motion and the triage motion is adjourned to the case conference judge.

J. Paul R. Howard Local Administrative Justice – Chatham Released: April 24, 2020

[1] Berube v. Berube, 2020 ONSC 2221 (S.C.J.).

[2] I have considered the sur-reply affidavit of the applicant father out of considerations of fairness (even though delivery of a sur-reply was not contemplated – or, arguably, permitted – by my April 9th endorsement) because, in my view, there were some aspects of the respondent mother’s reply affidavit that, arguably, strayed beyond the strict confines of proper reply.

[3] Report of the Office of the Children’s Lawyer released June 14, 2017, at p. 8, being Exhibit “B” to the affidavit of Heather Berube sworn April 8, 2020 (“O.C.L. Report”).

[4] Ibid., at p. 18.

[5] Ibid., at p. 6.

[6] Courts of Justice Act, R.S.O. 1990, c. C.43.

[7] Hadley v. Hadley, 2020 ONSC 1927, 2020 CarswellOnt 4207 (S.C.J.), at paras. 11-13.

[8] Tessier v. Rick, 2020 ONSC 1886, 2020 CarswellOnt 4117 (S.C.J.), at para. 5.

[9] Ibid., at para. 15.

[10] Ribeiro v. Wright, 2020 ONSC 1829, 2020 CarswellOnt 4090 (S.C.J.), at para. 26.

[11] Ibid., at paras. 9-18. [Emphasis in italics added. Emphasis in underline in original.]

[12] Ibid., at paras. 20-21. [Emphasis in italics added. Emphasis in underline in original.]

[13] Chrisjohn v. Hillier, 2020 ONSC 2240, 2020 CarswellOnt 4994 (S.C.J.), at paras. 10-12. [Emphasis added.]

[14] Cooper v. TenEyck, 2020 ONSC 1876, 2020 CarswellOnt 4210 (S.C.J.), at para. 14.

[15] Skuce v. Skuce, 2020 ONSC 1881, 2020 CarswellOnt 4405 (S.C.J.), at para. 70.

[16] Ibid., at paras. 88-90.

[17] Indeed, para. 15 of the applicant father’s responding affidavit sworn April 16, 2020, concedes that as of the date of his March 27th text reply to the mother, “I had not spoken with my lawyer as he was in isolation.”

[18] See para. 25(g) of the applicant father’s responding affidavit sworn April 16, 2020.

[19] See para. 14 of the reply affidavit of the respondent mother sworn April 20, 2020.

[20] Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9.

[21] Order under Subsection 7.0.2(4) of the Emergency Management And Civil Protection Act – Organized Public Events, Certain Gatherings, O. Reg. 52/20.

[22] Godard v. Godard, 2015 ONCA 568, 65 R.F.L. (7th) 265, at para. 13.

[23] Ibid., at paras. 28-29.