Court File and Parties

Date: April 1, 2020 Court File No.: 05/20 Ontario Court of Justice

Endorsement

Justice: Philip J. Clay

Applicant: Kerneisha Ria Francis Counsel: Mr. S. Oleyade

Respondent: David O'Raine Francis Counsel: Mr. J. Syrtash

In Chambers

Background

[1] The Respondent father served and filed a Notice of Motion seeking directions from the court. He also filed an affidavit in support and a case conference brief. The materials were served upon the Applicant mother's counsel late in the day on Friday March 27. As of April 1, the mother had not filed a responding affidavit.

[2] This matter concerns an Application brought by the mother for custody of and child support for the 8-year-old child Matthew Alex Francis. The parties never lived together and have never had any agreement or court order concerning the child. The father is seeking joint custody and a fixed schedule amounting to as close as possible to equal time.

[3] The father stated that he has a close relationship with his son and saw him regularly prior to the mother remarrying and having another child. The father alleges that the mother has denied him access for extensive periods of time over the past two years. He has not seen his son since he returned him from a visit on January 2/20. He says that she told him he would not see the child again until the matter went to court in March. He says that she has used a variety of explanations for denying time with the most recent being the child's safety during the COVID 19 pandemic.

[4] Counsel attended a first appearance on March 12/20. A case conference date was set for April 23/20. This was just before the directive came from the Chief Justice of the OCJ that only urgent matters were to proceed in the family courts. If this motion is not granted the scheduled case conference will be adjourned to a new date in June or July.

[5] The father has filed with his case conference brief two recent cases interpreting the said directive being Ribeiro v. Wright 2020 ONSC 1829 and Jackson v. Doyle, 2020 ONSC 1928. He asks that the court consider this to be an urgent matter to be heard by way of a motion or an urgent case conference.

Decision

[6] I recognize that this matter was only served three days ago and I do not have the benefit of the mother's evidence. I find though that I can make a determination on the sole issue before me just based upon the evidence in the father's affidavit.

[7] There have now been a number of cases that address the urgency requirement to have matters addressed in court during the health crisis. I have reviewed the case law and its application to the known facts of this matter.

[8] Unlike most of the other cases the relief sought in this matter is not as a result of a denial of access or a withholding of a child due to the COVID 19 crisis. The father's evidence was that there was a denial of access that occurred well before the world-wide pandemic and for totally unrelated reasons. I have no doubt that when the mother files her conference brief she will set out her reasons and she will likely explain the background in a different way than the father.

[9] The father relied upon Ribeiro. In that case Justice A. Pazaratz wrote:

6. The health, safety and well-being of children and families remains the court's foremost consideration during COVID-19. This is an extremely difficult and stressful period for everyone.

7. On the one hand there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8. On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible. 9 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.

9. 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. 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.

22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

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.

24 In family court we are used to dealing with parenting disputes. But right now it's not "business as usual" for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don't take parenting responsibilities or COVID-19 seriously.

[10] In Ribeiro there was an existing parenting order that was not being followed allegedly due to concerns that the child would not be protected from the virus. Nevertheless, Justice Pazaratz still found that the matter did not meet the urgency requirements. In the case before me, the parties had never agreed upon any parenting arrangement and the lack of contact the father has with the child well pre-dated the current crisis.

[11] The father also relied upon Jackson. In that case there was also a pre-existing court order albeit one that had just been made. Justice Diamond stated:

7. Before the events of earlier this month giving rise to the applicant's motion, there was no fixed access schedule although it appears that the parties would typically agree upon when and how the respondent would exercise access to the children. The respondent takes the position that given the terms of my Endorsement dated March 20, 2020, and with the children now under the applicant's primary care, his access has been rendered very limited and he seeks the opportunity to address this issue on an urgent basis.

[8] Since I have yet to receive or review any responding materials, I am not in a position to assess whether the respondent's request for access terms (whatever those may be) fit the "urgency requirement" as set out in the Chief Justice's Notice to the Profession dated March 15, 2020 ("the Notice"). In my view, and consistent with the directives in the Notice, I am not prepared to foreclose the respondent's request for access terms without first reviewing his responding materials. If those responding materials satisfy the "urgency requirement", then the motion shall be scheduled to be argued before me as the designated judge.

[12] In Douglas v. Douglas (unreported SCJ at Niagara 684/19) Justice W.L. MacPherson wrote:

The issue to be determined: Is this motion urgent?

[8] The COVID-19 pandemic is unprecedented. The situation changes daily, if not hourly. To address the risks posed by the virus, as those risks are known at any particular time, government authorities and public health officials issue directives to address the perceived risks.

[9] There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child's physical well-being, but also their emotional wellbeing. Total removal of one parent from any child's life must be exercised cautiously.

[10] This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court. However, the court must take guidance from the Chief's notice that confirms that all court operations are suspended with the exception of those that are urgent and emergency matters. The Chief's notice defines such matters in the context of family files to be relative to "the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child."

[11] The matter is understandably very important to the father. However, in my view it is not urgent nor is it an emergency. There is no indication that H 's safety is at risk. While father's counsel might wish to have this court interpret the mother's actions as wrongfully retaining the child, from my perspective, the language used in the Chief's notice was done purposefully to mirror the language under the Convention on Civil Aspects of International Child Abductions (the "Hague Convention") and would not be applicable when the issue is parenting time. It may be that there will be some limited scenarios involving an abduction of a child where relief is sought under the Children's Law Reform Act, and a court finds such matter to be urgent. But this is not one of those cases.

[12] Within that context, I find that the motion is not urgent at this time.

[13] The father in the case before me is seeking a motion or urgent case conference. He has set out in great detail the history of this matter and he has been very specific about the generous access that he wants with his son. I find that I have enough information from his own material to make a determination of the threshold issue of urgency without hearing from the mother who is the responding party to this motion.

[14] I find that the Douglas case properly interprets the Court's directive on the urgency issue. The directive was very specific, and it does not permit a court to come to a subjective determination of "urgency" on a case by case basis. There may be situations where it is clear that a party is in bad faith disobeying a court order and using as an excuse for so doing the health crisis see Skuce v. Skuce, 2020 ONSC 1881. In the case before me there is not only no order in place there is no time-sharing agreement.

[15] The fact that I do not find the matter to be urgent does not mean that it is not important or that its resolution should be delayed. I am also not making any ruling on whether the health crisis and the attendant emergency declarations should impact the father's contact with his son in this case. As is noted in all of the recent cases children have a right to a meaningful relationship with both of their parents and in person access can occur if both parties follow the government health directives.

[16] In this case the child is 8 years old and appears to have a significant pre-existing relationship with the father. According to the father the boy has not seen him since January 2/20. This must be addressed by the parties.

[17] Both parties have experienced family law counsel. The father's affidavit references correspondence on access being exchanged. The parties should always try to resolve issues outside of court. Given the current barriers to access to the courts necessitated by the health crisis there is a heightened obligation on the parties and their counsel to negotiate in good faith. This point has been repeatedly emphasized in the post-crisis case law.

[18] In Douglas Justice W.L. MacPherson, having found the matter not to be defined as urgent, went on to write:

13 I would point out that in the Chief's notice, the Chief Justice of Ontario called "upon the cooperation of counsel and parties to engage in every effort to resolve matters" during the period of suspension of regular court operations.

[14] The parties have experienced family law counsel representing them. It does not appear that mother's counsel has responded to father's counsel in any meaningful way to reach a reasonable resolution. He is encouraged to do so. Surely a complete termination of all contact between the child and his father cannot be in the child's best interests even in these unprecedented times.

[15] Finally, all counsel and parties must be aware that actions taken in these unusual circumstances, may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.

[19] The mother has the father's detailed time-sharing proposal. It is incumbent upon her to make her own proposal through counsel. I note that the mother brought this Application to the court seeking custody and child support. She must make a proposal that she believes is in the child's best interests and set out in detail the reasons for her position. I note that the father has listened to the advice of his counsel on the child support issue and is now paying the CSG table amount. As noted in the cases above the steps taken or not taken between now and when the case conference is held will be judged by the court.

[20] The motion for directions is denied.

[21] This matter will remain on the list for a case conference on April 23/20 and will be adjourned by court's administration to a date in June or July for a case conference.

Justice Philip J. Clay