Court File and Parties
Ontario Court of Justice
Date: 2020-04-14
Court File No.: Woodstock D61/18
Between:
Jennifer Lyons Julie Lyons Applicants
— And —
Rebecca Lawlor Tony Serpa Respondents
In Chambers Endorsement
Per: Covid-19 Protocol
April 14, 2020
PAULL J.:
[1] As a result of Covid-19, which has caused a suspension of all but urgent OCJ family matters, many separated families are struggling with access arrangements. This has resulted in an increase in motions to either suspend or enforce access as parties grapple with balancing safety and social distancing with the child being able to maintain their regular contact with a noncustodial parent. This is the situation in the present case.
[2] The motion and supporting affidavit were reviewed without responding materials pursuant to the Notice to the Public dated March 19, 2020, which outlined that urgent motions would be initially assessed to determine if prima facie urgency existed, and to give directions if appropriate on further filings and any hearing ordered.
[3] This is the preliminary ruling on the applicants' Notice of Motion dated April 2, 2020 wherein they seek a temporary suspension of face-to-face access between the child, Jaxon born […], 2018 and his mother, Rebecca Lawlor.
Background and Evidence
[4] The applicants are the paternal grandparents of the child and they have Jaxon in their primary care.
[5] The final order of July 8, 2019 granted the applicant, Jennifer Lyons and Ms. Lawlor joint custody of Jaxon and his brother River, born […], 2017. The order provided for primary residence of Jaxon with the applicants and River with Ms. Lawlor with regular access including that the children are together every weekend in either one of the homes.
[6] The applicants seek to suspend face-to-face access between Jaxon and his mother and sibling during the "acute phase" of the pandemic for the following reasons.
[7] Jaxon was diagnosed with asthma by the family doctor in January 2020 and was prescribed two inhalers. The applicants are very concerned that Jaxon is at elevated risk should he be exposed to Covid-19. As a result, the applicants take social distancing and safety measures very seriously.
[8] The risk to Jaxon is also increased because Ms. Lawlor in their view is not taking social distancing seriously as evidenced by her taking River and her other child, Bentley to Walmart and exposing them to a busy public place while letting them interact with others. They believe this occurred because they were advised by their son, the father of Jaxon and River, that he was told by a friend that she saw the family there. In the text messages attached to the applicant's affidavit Ms. Lawlor denies that River was at Walmart.
[9] The applicants are also concerned that Ms. Lawlor's other child, Bentley, recently had a viral infection and pneumonia, and they are unsure of his status and whether he has recovered.
[10] They submit that all these factors support urgency and warrant an order suspending face-to-face access.
Analysis
[11] The applicants' urgent request in this case is based on the risks of Covid-19 to Jaxon given his asthma, and that Ms. Lawlor is not being vigilant on social distancing and safety measures.
[12] The issue of when an urgent hearing is justified was reviewed in detail by Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829.
[13] I agree and adopt his analysis. The court noted that Covid-19 concerns are of grave importance, however at paragraph 10 noted that, "a blanket policy the 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."
[14] There is no presumption that the existence of Covid-19 automatically results in a suspension of in person parenting time or that its existence will automatically result in an urgent hearing.
[15] The court at paragraph 21 provided that Covid-19 parenting issues will be dealt with on a case-by-case basis by considering the following:
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.
[16] There is a presumption that all orders should be respected and complied with. The onus, therefore, 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 expose the child to risk. Tessier v. Rick, 2020 ONSC 1886.
[17] However, this presumption that existing parenting arrangements and schedules should continue, is subject to whatever modifications may be necessary to ensure that all Covid-19 precautions are adhered to – including strict social distancing.
[18] Based only on the supporting affidavit filed by the applicants I am not satisfied that they have established urgency in a failure, inability, or refusal by Ms. Lawlor to adhere to appropriate Covid-19 protocols going forward.
[19] The applicants believe that Jaxon is at particular risk as a result of his asthma. However, there is no medical opinion from the family doctor confirming this or that Jaxon requires more intensive distancing efforts to keep him safe. Direct and compelling evidence from his doctor was not provided and would be required to support that conclusion.
[20] Further, the evidence of Ms. Lawlor taking River to Walmart amounts to double hearsay as it comes from the applicants' son who heard it from a friend. Hearsay is presumptively inadmissible, and I see no exception for admitting it on the evidentiary record provided. Also, it is clear that Ms. Lawlor, in the texts provided, did not dispute going to Walmart but was adamant River was with her mother at the time.
[21] Finally, the issue of Ms. Lawlor's other child having pneumonia is not sufficient grounds to support an urgent suspension of face-to-face access, particularly since it appears that Ms. Lawlor behaved reasonably by alerting the applicants to this issue and agreeing to suspend access for a weekend as a result.
[22] None of this should be taken to say that the applicants concerns about Covid-19 are not well-founded, or that the parties should not consider adjusting the access schedule in the circumstances. What it means is that they have the responsibility to communicate and share information regularly and to ensure that unwavering social distancing and safety measures are in place in both homes. Further, they need to keep each other advised of their efforts and any issues that arise, and to carefully consider any specific medical advice from Jaxon's doctor.
[23] I repeat the following comments of Justice Pazaratz:
Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources in a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.
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"
I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.
[24] With these points in mind the parties in this case are strongly encouraged to communicate and cooperate to ensure that the children are kept safe in these unprecedented and uncertain times, and to agree upon any modifications to the contact arrangements that are necessary, while being mindful of the importance that the love, guidance, and emotional support children need and receive from all their caregivers. This process should start by Ms. Lawlor providing specific and absolute assurance that Covid-19 safety measures are in place in her home and to provide the details.
[25] On the basis of these considerations prima facie urgency has not been established and the motion is dismissed. However, it shall be dismissed without prejudice to the applicants to return the matter to court on an urgent basis if the circumstances warrant, following meaningful efforts by them to resolve the issues without further litigation. The court will require direct medical evidence if Jaxon's asthma is an issue and evidence of clear and specific Covid-19 concerns related to him, including that his mother is not maintaining strict vigilance to Covid-19 safety precautions.
Released: April 14, 2020
Signed: "Justice S. E. J. Paull"