Court File and Parties

Ontario Court of Justice

Date: April 9, 2020

Court File No.: D-118-19

Between:

Tyler Thomas Smith Applicant

— And —

Ashley Lynn Smith Respondent

Before: Justice Jane Caspers

Heard on: April 9, 2020

Endorsement on Motions released on: April 9, 2020

Counsel:

• Sarah Greatrix, counsel for the applicant
• Andrea Clarke, counsel for the respondent

CASPERS, J.:

1: INTRODUCTION

[1] The court has received two "urgent" COVID-19 access motions brought within the context of an ongoing, high conflict custody and access proceeding. The issue is whether these matters are urgent and should proceed as an exception to the March 28, 2020 COVID-19 Pandemic – Scheduling of Family Matters in the Ontario Court of Justice.

[2] The motion brought by the Applicant ("father") issued March 31, 2020 seeks enforcement of the access terms incorporated into the prevailing interim court order of October 15, 2019. He also seeks some additional access to compensate for the access he was denied on the weekend of March 27-29, 2020. The Respondent ("mother") in her motion dated April 3, 2020 seeks to suspend all access in light of the COVID-19 pandemic, pending further court order but offers telephone, Facetime or Skype access.

[3] As voluminous materials were filed electronically and for the sake of clarity, I confirm that the court has received and reviewed the following documents:

• Notice of Motion of the Applicant dated March 31, 2020.
• Affidavit of A.F., paralegal, dated March 31, 2020, with attachments.
• Applicant's Brief Book of Authorities.
• Draft order for the court's consideration filed by the Applicant.
• Bill of Costs for the Urgent Motion filed by the Applicant.
• Notice of Motion of the Respondent dated April 3, 2020.
• Affidavit of B.G., law clerk, dated April 3, 2020.
• Respondent's Summary of Legal Argument.
• Respondent's Book of Authorities.

[4] The hearing was held remotely via teleconference on today's date. Both parties were represented by counsel. Each counsel made submissions on the record. This is my decision.

2: BACKGROUND

[5] The father and the mother are the parents of two children, twins born in 2016, T.R.S. ("T….") and T.S.S. ("Th….") ("the children").

[6] The relevant, governing provision relating to access is set out in the interim order of October 15, 2019 at paragraph 5, as follows:

5. Commencing January 3, 2020, the Applicant, Mr. Smith, shall have care of the children on alternating weekends from Friday at 5:00 pm inclusive to Sunday at 5:00 pm with a mid-week dinner visit from 3:00pm to 7:00pm every Wednesday.

[7] Prior to these motions having been brought, father agreed to a brief suspension of his mid week access to avoid too many exchanges for the children during these challenging times. He has since withdrawn that offer and seeks to enforce all his court-ordered access as set out in paragraph 5 with some makeup time commencing this weekend.

[8] Since March 27, 2020, the mother has refused to allow the father access. Her reasoning, simply put, is that she does not think that he is taking precautions to safeguard the health of the children in the face of the COVID-19 Pandemic.

[9] A lengthy s.112 Report ("Report") was prepared by Cris Calley Jones, clinician with the Office of the Children's Lawyer ("OCL"), dated March 4, 2020. The Report was filed with the court on March 5, 2020. Both counsel referenced this Report in their written materials and in submissions.

Father

[10] Father is employed in a managerial position with his family's transport business. It has been deemed an essential service and therefore his employment is ongoing. He resides in Mount Forest with his partner who is a truck driver. He states that he is complying with all Public Health Protocols and Directives as they relate to ensuring his safety, the safety of his children, his partner and the co-workers with whom he works.

[11] Until March 27, 2020 he was exercising his court-ordered access.

Mother

[12] Mother is unemployed. She is the primary caregiver for the children. She resides with the children and her parents on a farm.

The Children

[13] Mother's evidence speaks to the health issues and special needs of the children. Since infancy they have tended to suffer from ear infections, colds, pinkeye, pneumonia and respiratory issues. T… has grand mal seizures and recently his medication has been increased. Th… has asthma and uses inhalers. Both children have respiratory issues and use inhalers. She concedes that father is aware of these underlying health issues. Father has confirmed his appreciation of the children's health issues and their vulnerabilities.

3. URGENCY

[14] The issue to be determined: Is this motion urgent?

[15] There is a presumption that all orders should be respected and complied with. The onus, therefore, in this prevailing pandemic climate, is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID-19 Protocols and which expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.

[16] 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.

[17] In Thomas v. Wohleber, 2020 ONSC 1965, the court found that the following factors are necessary in order to meet the requirement of urgency:

1. The concern must be immediate; that it 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.

[18] I am satisfied that the motion brought by father meets the requirement of urgency for the following reasons:

1. Mother has never willingly encouraged access between the children and their father. Mother has a history of not complying with court orders. She denied father access from the date of separation on or about December 22, 2018, until September 24, 2019, when temporary access was reinstated by court order. The access ordered on September 24, 2019 extended only to October 6, 2019. As mother refused to extend access voluntarily beyond that date, a motion was argued on October 15, 2019. The decision articulated in that order reflects the current status quo. Pursuant to that order, mother was required to pay costs in the amount of $3500.00.

   On March 27, 2020, when mother made the unilateral decision to terminate father's access, she proposed that father could not see the children again until he underwent a 14-day period of isolation even though he has not travelled away from his present residence and place of employment. She says nothing about what might happen after that 14-day period should father agree other than to suggest that thereafter access would proceed on a "graduated basis."

2. Mother in her affidavit has raised concerns that are historic in nature. She says that father was away a lot during the marriage, she says he "lacks insight" into the children's needs, she questions his sincerity when he alleges that not seeing the children will be detrimental for them despite the fact that the OCL noted that father had a strong relationship with both T… and Th… and that they are well cared for in his care. She raises once again the spectre of drug and alcohol use by father which was never substantiated. She dwells on his relationship with another child, Eva, all of which has been previously canvassed and is irrelevant to this proceeding.[1]

   In summary, her affidavit is simply a restatement of all her previous, well-documented and unrelenting criticisms of the father.

3. There is little information that is new or relevant to the issue before the court – that being a denial of access as a result of the COVID-19 Pandemic. Mother notes only that father lives with a partner who is a truck driver and travels to Quebec. While there is no assurance, but based on father's submissions, I anticipate and would expect that father's partner would abide by the necessary Protocols and Directives issued by Public Health and that father would ensure compliance.

4. Mother suffers from anxiety. It was noted in the Report completed by Cris Calley Jones that mother's anxiety has impacted her parenting decisions. Ms. Calley Jones also noted that the children would benefit from routine and from having "maximum time with each parent".[2]

   Ms. Calley Jones notes that in her conversation with Dr. Law, the family physician, he reported that mother "has struggled with some anxiety related to the divorce and tended to worry that the children would not be safe with anyone other than herself." Dr. Law also reported to the clinician that he thought it likely that mother's anxiety may have contributed to her making it difficult for father to see the children or be more involved.[3]

[19] Given the foregoing, should the court determine that access should be suspended and delays a resolution on this issue for an indefinite period, which given the present uncertainty would certainly be the case, I am confident that the relationship which father has sought to reinstate with his sons would be compromised.

[20] In response to mother's assertions, father submits that he has taken all necessary precautions to ensure his safety and that of his children. Specifically, he:

• can distance himself from others due to his managerial position. Father's job is designated as essential. It involves him having to go to warehouses to get supplies and to meet with those in the trades. He reports that there are no reported COVID-19 cases at work.

• has access to gloves and hand sanitizer at home and in his vehicle.

• would not take the children to his mother's home as she has recently returned from Florida.

• intends to spend time with his children indoors for the most part doing activities and practicing safe measures such as frequent hand washing and social distancing from others if he and the children go for walks.

• limits visits to the grocery store.

• remains at home after work and does not socialize.

[21] Father has taken appropriate steps to keep his children safe. The concerns raised by father regarding his access and the impact that delay would have on his relationship with his children is immediate and cannot wait for a deferred resolution. Mother's concerns, however, are speculative. None forms a basis for non-compliance with a child custody and access order, at least not without further evidence to support the allegation that continued access would jeopardize the health and safety of the children.

[22] In this case there is an access order, albeit interim, in place. Mother has chosen not to respect it. She indicates that the current access arrangement is no longer in the children's best interest. A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their children's wellbeing, or the health of a person in the home; then the parent must provide specifics and bring a motion to change the order. See: Almadi v. Kalashi, 2020 ONSC 2047.

[23] The court has rendered this matter urgent as the best interests of the children dictate that the legal aspects of their time with their father be solidified.

4. DECISION

[24] 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.

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

[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.

[26] This court does not dismiss mother's worries and anxiety about the COVID-19 health crisis. The COVID-19 situation has been accompanied by a relentless flood of information evident from a quick examination of newspaper front pages, top stories on any news channel, or trending topics on Twitter. We confront its brutal assault on the global population every waking hour.

[27] The now well-cited case of Ribeiro v. Wright, 2020 ONSC 1829, authored by Justice Pazaratz, which this court endorses, succinctly summarizes the dilemma that we, as judges, confront and the conflict experienced by parents in the face of this global Pandemic:

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.

[28] Those concerns, this court understands. But those concerns can be addressed through what has been judicially described as "responsible adherence to the existing court order".

[29] What is meant by "responsible adherence to the existing court order" is expanded upon in Le v. Norris, 2020 ONSC 1932, a decision of Justice C.J. Conlon:

13. Finally, what do I mean by "responsible adherence to the existing Court Order"? I mean being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child, C., contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by C. Neither party shall do anything that will expose him/herself or C. to an increased risk of contracting the virus.

[30] This court orders that the October 5, 2019 Order regarding access between father and the children shall be complied with in all respects save and except for the Wednesday access which will be suspended for the time being. In its place father shall at his own election have either telephone or Skype/Facetime access on notice to mother. A suspension of the midweek access will reduce the number of exchanges to which the children would be exposed. Mother has failed to meet the evidentiary burden that father's actions were inconsistent with COVID-19 Protocols.

[31] Parenting arrangements currently in place should continue unless there is clear evidence that a child's health and safety is at risk. Mother has produced no such evidence. Father has been denied access to his children through the unilateral and unwarranted actions of mother. I find that make-up access as requested is appropriate as a means of compensating for unjustified time lost.

5. PLEADINGS

[32] Counsel have each filed affidavits from staff "due to the COVID-19 Pandemic and without the need for physical contact". No affidavits were filed by the parties themselves.

[33] In Farooq v. Hawkins, Justice Pazaratz expressed his displeasure about the husband's decision to support his position in a high conflict proceeding with an affidavit of a third party rather than the husband himself. He referred to the proceeding as a waste of time and chastised counsel and Mr. Farooq, who was also a lawyer, for filing what he referred to as "defective materials". He addresses the issue of the filing of affidavits on motions from lawyers and staff at paragraph 14:

[14] There have been a number of recent decisions expressing the court's very strong disapproval of the apparent growing practice of affidavits being filed by lawyers or by legal staff. Among the instructive cases: Pavao v. Ferreira, 2018 ONSC 1573; CAS v. N.A.-M., 2018 ONSC 978; Ceho v. Ceho, 2015 ONSC 5285. Some basic principles emerge:

a. Rule 14(17) sets out how evidence may be presented on a motion. This includes affidavits.

b. Rule 14(18) requires that "an affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit."

c. Rule 14(19) specifies the limited circumstances in which an affidavit can contain information obtained from another person (and the source must be named).

d. Rule 14(19) is permissive, not mandatory. Its primary function is to provide a controlled exception to the hearsay rule. A judge retains the discretion to refuse to admit the hearsay evidence based on information and belief when the information is being led for the truth of its contents.

e. The caselaw recognizes that a failure to attribute hearsay evidence is not in itself fatal in circumstances where it is possible to glean the source of the information from attached exhibits, or circumstances where the matters referred to are not contentious.

f. There are very few circumstances in which lawyers – or staff members of law firms – should be filing affidavits on behalf of parties, in contentious proceedings. This should be limited to summarizing non-contentious facts or documents, or providing an agreed upon chronology. On some procedural motions a lawyer's affidavit might assist in focussing on the legal issue.

g. But as a general rule – particularly in family court (and especially in family proceedings relating to children) -- parties should always file their own affidavits setting out their first-hand knowledge, observations and experiences. If there are unique circumstances in which a party cannot file their own affidavit, those circumstances should be specifically set out.

h. There is no Rule that allows lawyers – or lawyers assisting lawyers – to file affidavits on behalf of parties, setting out contentious factual information, or advancing evidence dealing with the substance of a claim. If there's any doubt about what's contentious and what's not, the safer course is to simply have the party file an affidavit setting out all of the evidence.

i. Motions are very important in family proceedings. Even when proper affidavit materials are filed, the court must still struggle with dealing with untested materials. It is inappropriate to needlessly add a further layer of uncertainty, by allowing lawyers to tell the story and advance the narrative, in circumstances in which the party could and should be telling their own story.

j. Affidavits by lawyers or legal staff are problematic because they are not so easily subject to scrutiny. Parties can be cross-examined on their affidavits. But it is much more cumbersome and impractical to raise the issue of cross-examining lawyers or legal staff.

k. Speaking plainly, having a lawyer or legal staff member swear an affidavit on behalf of a client is lazy, and breaches counsel's responsibility to advance a client's evidence in a proper and admissible manner.

[34] As an antidote to this procedure, during the COVID-19 Pandemic, rules have been relaxed and courts appear to adopt the position that wherever the affidavit materials of the parties have not been properly sworn/affirmed and/or commissioned, they have been treated as having been properly sworn/affirmed and, therefore, courts have attached to them all of the qualities and consequences of being sworn/affirmed evidence. That is the practice in this court.

[35] The court is of the view that this is the proper approach to take and that affidavits of support staff ought not to be filed in lieu of unsworn/affirmed affidavits from the parties involved.

6. ORDER

[36] Having found that the matter must proceed on an urgent basis, the court will modify the previous interim order dated October 5, 2019 dealing with access on the Wednesday evenings. That access will be suspended until mid-June at which time it may be reviewed. Make-up access will be ordered.

[37] There shall be an interim order as follows:

1. The Applicant, Tyler Thomas Smith, shall have 'make-up' care of the children, namely T… and Th…, twins, born in 2016 as follows:

(a) Friday April 10, 2020 at 3:00 pm inclusive to Monday April 13, 2020 at 5:00 pm. (Applicant's normally scheduled weekend with Easter extended to the Monday).

(b) Friday April 17, 2020 at 3:00 pm to Sunday April 19, 2020 at 5:00pm (normally Respondent's scheduled weekend but given to the Applicant as a make-up access weekend).

(c) Friday April 24, 2020 at 3:00 pm inclusive to Sunday April 26, 2020 at 5:00 pm (Applicant's normally scheduled weekend).

2. The Respondent, Ashley Lynn Smith, shall drop off the children for access at the Applicant parent's home (driveway) in Mount Forest on Friday when the Applicant, Tyler Thomas Smith, is scheduled to exercise his access and the Applicant, Tyler Thomas Smith, shall drop off the children on alternating Sundays (or Monday if access is extended) at the Respondent's parents' home (to the door) following access.

3. The Wednesday mid-week access is suspended pending further court order of the court, but may be reviewed after mid-June, 2020.

4. The Applicant, Tyler Thomas Smith, shall have liberal and generous Skype/FaceTime and telephone access with the children.

5. I encourage the parties to discuss the issue of costs. If no agreement is reached each may file a one-page submission on costs with a Bill of Costs attached within 7 days.

6. All filings are to be placed in the Continuing Record once the court resumes its normal court operations.

Released: April 9, 2020

Signed: Justice Jane Caspers

Footnotes

[1] Affidavit dated April 3, 2020 paragraphs 17, 18, 19, 22-26; OCL Report dated March 4, 2020, page 18.

[2] OCL Report dated March 4, 2020, page 16.

[3] OCL Report dated March 4, 2020, page 24.