Court File and Parties

Date: April 9, 2020

Court File Number: 135-2019

Ontario Court of Justice at Orangeville

Between:

Courtney Barbara Russell Applicant

and

Alexander Thomas Daoust Respondent

Justice: B. E. Pugsley

Heard: April 9, 2020

Released: April 9, 2020

Appearances: None: ex parte

Endorsement

1. The Parties are the parents of Lyla (5 years of age) and Laura (almost 4). The Applicant (mother) commenced an Application and moved for an order without notice in early December, 2019. The Respondent (father) is currently facing a criminal process wherein he is on terms of release which restrict his direct contact with the mother and her parents. Both parties have counsel. They are not married and hoped to deal with their property issues out of court.

2. On the return of the motion review the parties met and agreed to adjourn on terms. Those terms included periodic every other weekend daytime only access by the Respondent. Access commenced. In the interim however the current COVID-19 health pandemic accelerated and on the return date the matter was adjourned by the parties to early June as the courts struggled to maintain service in the face of the medical crisis.

3. The sudden onset of the COVID-19 pandemic was particularly concerning to the Applicant. The youngest child Laura, has a medical condition said to make her particularly vulnerable if exposed to the COVID-19 virus. She communicated those concerns through counsel and the Respondent agreed to miss two scheduled visits.

4. The Applicant suggested that visits via video would help keep the children in touch with their father. The respondent believed that these would be hard to set up given the current terms of his release order which apply to the maternal grandparents as well as the Applicant. Although this impediment was discussed no proposed solution was made.

5. The Respondent became unsatisfied with the medical advice cited by the Applicant. He believed that she was overstating the risk and using the virus as a pretext to curtail access. His lawyer communicated with Applicant's counsel indicating that he was no longer agreeable to pause his access and that if access was not recommenced, he would seek a finding of contempt.

6. The Respondent also raised issues involving the disposition of the proceeds of sale of the home formerly lived in by the parties, suggesting that an order ought to be made transferring the matter to the Superior Court of Justice.

7. Answering the Respondent's concerns, the Applicant provided a letter from the child's doctor suggesting continued social isolation. She has also drafted a separation agreement.

8. Letters exchanged between counsel have become somewhat chippie in nature no doubt because of the very real stresses everyone is subject to during this unprecedented medical emergency.

9. The Respondent has moved on notice but in chambers for, inter alia, an order transferring this matter to the SCJ; and, an order by this court granting leave in the SCJ to hear an urgent motion with regard to access and the proceeds of sale of the former shared home.

10. The relief requested is either non-urgent (the transfer) or beyond my jurisdiction (telling the SCJ what to do) and must be dismissed.

11. If it assists the parties however, I will make the following observations.

12. First, I can't tell parties whether to commence an SCJ action or not, but I retain jurisdiction where appropriate to decline to transfer issues that both courts have jurisdiction to decide, and there is no marriage here. The division of the proceeds of sale if not decided on consent (and the material on that point is obviously not before me) would of course be beyond the jurisdiction of this court. The parties would have to do a cost-benefit analysis to determine the necessity of litigating what would normally be a rather routine issue.

13. Second, these are not "normal" times. The current medical emergency has turned everyone's lives topsy-turvy. Many are out of work, or are working from home. Everyone is stressed. Children of school age have not returned to school since the March Break. Younger children are at home instead of at day care, with grandparents or cousins, or at the park. People are being ticketed for walking in public. Deaths have occurred in our community, including from the very young to the very old.

14. Medical practitioners have suggested that Laura is at a higher risk because of a pre-existing medical condition. The evidence is sufficient to require caution. This is not an invention by the Applicant to drive a wedge between the children and their dad, it is a medical emergency. Lyla is affected too since she could bring the virus home. Prudence requires that an alternative to face to face visits take place for the time being. At this stage there is no knowing whether this will be a few more weeks or many, but it will end. There will be lots of time to re-establish regular in person visits, soon.

15. In the interim phone and video visits should be arranged through counsel. To shrug and say "the release order blocks it" is unacceptable from the best interests of the children.

16. Terms of criminal release can be varied. Most crown counsel would be amenable to such a variation which can be done in writing. Counsel should consider seeking advice from the Respondent's criminal lawyer. Perhaps a clear reading of the existing order would permit video visits to be arranged without placing the Respondent at risk. I don't know since I do not have the order before me.

17. The chambers motion herein is dismissed without costs.

Justice B. E. Pugsley Ontario Court of Justice at Orangeville