Court File and Parties
Ontario Court of Justice
Date: 2020-04-06
Court File No.: Toronto DFO-18-16053
Between:
Stephanie Livingstone Applicant mother
— And —
Thomas Cooper Respondent father
Ruling on Urgent Motion
Heard on: April 3, 2020
Reasons and Court Order released on: April 6, 2020
Counsel:
- David Russell — counsel for the applicant
- Ryan Gillissie — counsel for the respondent
Before: O'Connell J.
Introduction
[1] This is the return of an urgent motion brought by the father regarding the custody and access arrangements for the parties' two children, Kaile (age 13) and Emily (age 10).
[2] Due to the COVID-19 global crisis, the Ontario Court of Justice issued a Practice Directive (updated March 28, 2020) that all family court matters scheduled up to May 29, 2020 shall be adjourned for eight to twelve weeks, with exceptions for certain urgent matters as specified in the Court's Practice Directive.
[3] In order to protect the health and safety of all court users and to help contain the spread of COVID-19, members of the legal profession and members of the public are asked not to attend courthouses in person at this time unless a judge orders otherwise or if a party is unable to email family court documents relating to an urgent family matter.
[4] The Practice Directive also provides that under no circumstances should members of the legal profession or the public come into a courthouse if they have been advised not to by public health officials, their doctor or the Ontario Ministry of Health (MOH) website.
[5] This court directive applies to all family court matters scheduled in the Ontario Court of Justice up to Friday May 29, 2020.
[6] The Ontario Court of Justice Directive provides that urgent matters will proceed on a prioritized basis. These matters include:
Child, Youth and Family Services Act: place of safety hearings (s. 90); temporary care and custody hearings (s. 94), restraining orders (s. 137), status review hearings (s. 113), and secure treatment orders (s. 161);
Domestic matters: urgent custody and access motions; motions for restraining orders; Hague applications and non-Hague abduction cases; and
Family Responsibility and Support Arrears Enforcement Act: refraining motions (s. 35).
[7] Any other requests for an urgent family hearing are to be determined by a judge. Counsel are to serve and file a 14b motion request not to exceed ten pages setting out the reasons for urgency.
[8] If a judge does not declare the matter to be "urgent", then the documents submitted to the court may not be processed until regular court operations resume.
[9] A review of the Ontario Court of Justice's Covid-19 Pandemic Planning Directive makes it clear that the definition of "urgency" is not restricted to only those types of cases enumerated under the Directive. It is a non-exhaustive list. Further, the urgency in question does not need to be related to or caused by the Covid-19 emergency.
The Urgency in this Case
[10] The father sought, by 14b motion, leave to bring an urgent motion in this case. After reviewing the motion materials, I deemed that the motion was urgent for the following reasons, as alleged by the father:
The mother was charged with assaulting the father on or about January 17, 2020. There are conditions regarding no contact between the parties in the undertaking that the mother entered into at the police station.
Since the mother was criminally charged, she has not complied with the terms of the Final Court Order regarding custody and access arrangements between the parties. The father has had no access with the children since February 14, 2020. The father contacted police but they would not assist with enforcement because there is no police enforcement clause in the Final Order.
The mother is now living with and involved with a person who had a previous history of being charged and convicted of sexually assaulting and sexually interfering with a child. The Children's Aid Society has become involved with the mother and is investigating.
[11] The motion was scheduled before me on April 3, 2020. The hearing was conducted by way of audio conferencing in accordance with the Court's COVID-19 Practice Directive. The hearing took place in the courtroom and was recorded by a court reporter.
[12] Both counsel participated by telephone/audio conference call, and the parties were available by telephone. Counsel filed their materials electronically pursuant to the Ontario Court of Justice Covid-19 Notice and Update for the Electronic Emailing of Urgent Motion Materials, dated March 28, 2020.
Brief Background Facts
[13] The parties were in a relationship since on or about 2007. They separated in October of 2018, briefly reconciled and then separated again on a final basis on or about May of 2019. Kaile and Emily are their only two children together.
[14] This case has been in the Integrated Domestic Violence Court (IDVC) since approximately December 21, 2018. I have been the case management judge. This case can be appropriately described as "high conflict". Both parties have been criminally charged for assaulting each other in the past. The father has also pled guilty to assaulting the mother.
[15] On June 28, 2019, the parties, with the assistance of counsel, reached very comprehensive Final Minutes of Settlement resolving all of the issues between them, which were filed in court on that day and later incorporated into a Final Order.
[16] The parties agreed that the children's primary residence would remain with the mother and that she would make all final decisions regarding the children's health, welfare, and education, following consultation with the father. The father was granted alternating weekend access and mid-week access during the school year. During the summer school holidays, the parties agreed to an alternating week or "week about" schedule.
The Evidence on the Motion
[17] On January 17, 2020, during an access exchange, a physical incident occurred and the mother was charged with assaulting the father. According to the father's evidence, the mother refused to comply with the court order following her criminal charge, even though he had a third party in place to facilitate the access exchanges. The father and the children had only seen each other once since January 17, 2020 and had not seen each other at all since February 14, 2020.
[18] In her responding affidavit, the mother did not dispute that she had stopped the father's access. She stated that she felt disrespected and insulted by the father, that he was verbally abusing her on social media, and that he had made comments threatening self-harm. The mother also has a very different version of the events leading to her criminal charge.
[19] The mother did not dispute that she was involved with a person who had been criminally charged in the past regarding the sexual assault and sexual interference of a child. She further deposed that the person in question not only had been criminally charged but had a criminal record relating to those charges.
[20] The mother deposed that she is no longer involved with this individual and that she is complying with the directive of the Children's Aid Society that this person should have no contact with the children under any circumstances. The mother also denied living with him, although she admitted that he had slept over at her home on a few occasions while the children were present.
[21] At the commencement of the hearing, father's counsel advised that since the mother was served with the urgent motion and she retained counsel, she agreed to an access visit on the March 28th weekend, facilitated through a third party. Both parties confirm that the access visit went well. The access exchange occurred at the Woodbine subway, which is close to where the mother and the children reside.
[22] After some discussion, the motion was held down so that counsel could have a confidential discussion with the mother to obtain further instructions.
[23] Upon resumption of the hearing, the parties agreed to a temporary, without prejudice resolution of the urgent motion. The parties agreed to a "week about" arrangement very similar to the summer holiday schedule in the Final Court Order.
[24] The parties agreed that this arrangement would continue while the children were not in school due to the Covid-19 crisis. It would not displace the mother's primary residence set out in the Final Court Order. The children's primary residence would continue with the mother upon the resumption of school and pending any further order of the court.
[25] This temporary arrangement while the children are not in school would also significantly reduce the number of access exchanges, thereby significantly reducing the risk of any conflict between the parties as well as further protecting the health and safety of the children during this Covid-19 health crisis.
[26] The father also reserved his right to seek custody or primary residence of the children in his motion to change. The parties agreed to obtain disclosure of the Children's Aid Society's records since July of 2019 regarding any investigations of the parents and children.
Conclusion and Order
[27] Therefore, on consent of the parties, this court makes the following temporary court order, on a without prejudice basis, pending further court order or the return of this matter:
Commencing Friday April 10, 2020, the children shall reside with each parent on alternating weeks or a "week about" arrangement from Friday at 4:00 PM to Friday at 4:00 PM.
The pick up and drop off of the children shall be at the Woodbine Subway station and shall be facilitated by a third party.
This alternating week arrangement shall continue during the COVID-19 emergency while the children are not in school. Once the children return to school, they shall return to the mother's primary residence, and the Final Order shall resume, pending further order of the court.
The mother shall ensure that J.B. shall have no contact with the children under any circumstances, directly or indirectly, and that he not be present in her home while the children are in her care.
The Children's Aid Society of Toronto shall produce to counsel copies of its records since July 2019 to the present involving its investigation of both parents and the children in this case.
This matter shall return to Court for review on June 16, 2020 at 10:00 AM. The parties and counsel may participate by telephone conference call if required.
In the circumstances of the Covid-19 emergency, this endorsement is deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.
Justice Sheilagh O'Connell
Endorsement sent to both counsel by PDF attachment through email.