Court File and Parties

Ontario Court of Justice

Date: 2020-04-16

Court File No.: City of Stratford D103/12

Between:

Amanda Dawn Hermanus Applicant

— And —

Steven Laurin Respondent

Before: Justice K.S. Neill on April 15, 2020

Endorsement

Counsel:

• J. Stanfield — counsel for the applicant
• M. Vandersleen — counsel for the respondent

Neill J.:

The Parties and Children

[1] The parties are the parents of 5 children, three of whom are now adults. Only the two younger children, J.H. who is almost 16, and N.H. who is almost 14, are the subject of the present motion before the court.

The Existing Custody and Access Order

[2] On July 22, 2013, a final order was made on consent that the Respondent father have sole custody of the children, with access to the mother on each Friday overnight but with access alternating on one weekend from Friday at 4 p.m. to Saturday at 11 a.m. and the next weekend from Friday at 4 p.m. to Sunday at 7 p.m. The mother states that she has continued to exercise her access since that time on a consistent basis.

[3] The order of July 22, 2013 further provided as follows:

a) The parties may telephone or communicate by electronic means with the children while the children are in the care of the other party on a once daily basis. The children may telephone or communicate by electronic means with the Applicant or Respondent when they wish.

b) Neither party will monitor communications between the other parent and the children, for instance, by reading e-mails or having the children on speaker phone while speaking with the other parent.

c) The parties agree to refrain from discussing with the children, or with a third party in the presence of the children, present or past legal proceedings, issues between the parties in any such legal proceedings, or conflicts between the parties.

d) The parties shall alternate March Break each year such that in the year 2014 and in alternate years thereafter, the Applicant (mother) shall have the children for the Break from 4 p.m. on Friday at the commencement of the Break to 7 p.m. on Sunday at the end of the Break.

The Motion for Contempt

[4] What is presently before the court is the mother's motion for contempt claiming that the father is in breach of the final order due to the following:

• The father failed to provide the mother her weekend access since in or about March 20, 2020;
• The father failed to provide the mother with her March Break access for 2020;
• The father failed to facilitate telephone or other electronic communication between the children and the mother and monitored the children's communications with the mother; and
• The father has discussed the litigation with the children.

The Urgent Hearing

[5] I heard the mother's motion on an urgent basis on April 15, 2020 by teleconference, as the mother believed that the father was denying her access solely due to concerns related to COVID-19; the mother's evidence was that she was complying with all recommended safety measures to keep the children safe; and the children should not be deprived of contact with their mother particularly in this time of uncertainty. Of added concern is that both children have special needs: J.H. had been diagnosed with Autism but is high functioning. N.H. has been diagnosed with ADHD and anxiety.

Legal Principles

[6] There is a presumption that all orders should be respected and complied with. The onus is generally on the party seeking to restrict access due to concerns related to COVID-19 to provide specific evidence or examples of behavior that is inconsistent with COVID-19 protocols and expose a child to risk. [Tessier v. Rick, 2020 ONSC 1886]. However, this was not a motion by the father to suspend the mother's access order, but a motion by the mother to try to ensure she has access to the children.

Evidence Before the Court

[7] The evidence filed on the motion included the mother's affidavit sworn on April 7, 2020, the father's unsworn responding affidavit dated April 14, 2020, and the unsworn reply affidavit of the mother. When the matter was heard by teleconference, both parents confirmed that the contents of their unsworn affidavits were true.

The Parties' Positions at Hearing

[8] After reviewing all of the evidence and hearing submissions, it was clear that neither parent believed that the other parent would place the children at a health risk due to COVID-19 issues. The real concern was that the children themselves expressed to their father that they initially did not want to leave their home to attend access with their mother due to their level of anxiety over COVID-19, and the mother's concern that the father may be unduly influencing the children. Although the mother commenced a motion for contempt, she acknowledged that she believed this was her only recourse; that she only wanted access to be reinstated, and that she have some make-up time for the March Break week that she lost with the children. The mother agreed not to argue her motion for contempt at this time.

Consent Order

[9] On April 15, 2020, the parties consented to a temporary without prejudice order that, among other things, the access order of July 22, 2013 would resume and that both parties will encourage the children to attend for access visits, and the parents will encourage the children to communicate with the mother face-to-face by electronic means at least 3 times a week. The order specifically stated that the reason access would resume was that there was no evidence that the household of either parent is a health risk to the children due to COVID-19 issues, and this message may be conveyed to the children. Both parties also agreed to follow government orders and requirements as set out on the public health services website for COVID-19. The limited message to the children was to attempt to shield them from the litigation, but to hopefully assist to relieve their anxiety.

[10] I indicated in my endorsement dated April 15, 2020 that I would provide further reasons for my decision.

Background

The Father's Initial Decision to Deny Access

[11] On March 20, 2020, which was the start of the mother's March Break access with the children, the father advised the mother that he would like the boys to stay home "for the time being" but offered to see what "next week looked like". The father was clear he was open to alternative access with the mother. The father explained that this decision was made on advice from his "work, health nurse, and government".

[12] What the father failed to advise the mother was that during the week of March 16, several of his co-workers came to work with flu-like symptoms, and as recommended by the Health Unit, the father was directed to go home and self-isolate for a few days. By March 20, 2020, the father was laid off indefinitely. The father was fearful that he may have been exposed to COVID-19. Given the uncertainty and the direction of the Health Unit, and the fact that the boys expressed to him that they just wanted to stay at home, he made the decision to keep the boys at home temporarily.

The Mother's Response

[13] Believing that this denial of access was due to the concerns regarding COVID-19, in response, the mother assured the father that as a health care worker (where she is employed in a group home to support developmentally delayed adults), the mother is screened daily for COVID-19 issues and is vigilant about screening her family. The mother confirmed that she has not come into contact with anyone who has COVID-19, nor had anyone in her household. The mother also threatened to contact the police if her access was denied.

[14] The mother's counsel then sent an email to the father later on March 20, 2020 to reiterate that access would be safe, without success. The mother attended at the father's home on March 20 for her scheduled access and no one answered the door. She texted the father and the children without a response. The mother waited for 30 minutes then drove home.

Communication Issues

[15] The mother was unable to communicate with the boys for a day until later on March 21. N.H. told his mother that the father had kept both his and his brother's phones, which the father denies. When the boys finally responded to the mother on March 21 J.H. indicated that he had not responded due to "complications with coronavirus" and expressed concerns that the mother had taken them to a public gathering the previous weekend. The mother acknowledges taking the children to a public toy sale the previous weekend before the state of emergency was declared.

Medical Opinion

[16] On March 25, 2020, the mother consulted with her family physician, Dr. Bhattacharyya, who confirmed with her that she was at low risk of being exposed to the virus due to her job. Dr. Bhattacharyya further advised that there would be no reason why the boys could not have access with her, and that unnecessary self-isolation created a risk to the boys' mental health. The mother immediately provided the information from her doctor to the father, as well as the decision of Justice Pazaratz in [Ribeiro v. Wright].

Further Communication Concerns

[17] On March 25, 2020, N.H. confirmed in a text to the mother that the father had read the mother's emails to the boys, which again the father denies. On March 27 both boys texted their mother at the same time stating that they wanted to stay at their father's home for the time being. Thereafter neither child responded to the mother's texts for two days.

[18] By March 30, N.H. texted his mother saying that he misses her, and on March 31, 2020, J.H. advised his mother that "it really sucks that we can't see each other right now". The mother reassured the boys that her home is safe.

Media Exposure and Pandemic Messaging

[19] The boys told their mother that Justin Trudeau told them they are to stay at home and not go to the other parents' house right now. The mother is critical of the father exposing the boys to media coverage about the pandemic, particularly given their special needs and has asked the father to limit their exposure of COVID-19 media. However, the reality is that it is very difficult to shield any child from this type of media right now. The father explains that he has watched some of the media coverage about the pandemic with the boys together as a family, and that J.H. is discussing the pandemic as part of his schoolwork.

Educational Concerns

[20] The mother also had concerns that the father was not meeting the children's educational needs while the schools are temporarily closed as N.H.'s teacher emailed the mother expressing concerns that N.H. was not accessing his on-line school work. The father states that he has been in contact with all of N.H.'s teachers and ensures that he is doing is on-line school work.

The Mother's Work and Safety Measures

[21] On April 1, 2020, the mother sent another email to the father to reassure him that all of the clients in the group-home where she works self-isolate, and the day program is closed so they are not having contact with each other. All staff are being screened before each shift. Groceries are being delivered to the homes. The homes are sanitized daily. The clients are not seeing their own families or friends. As of April 6, 2020, the mother will no longer be working until further notice.

[22] The mother also explained that in their household, they practice precautionary measures as recommended by Public Health such as frequent handwashing, and generally only the mother does grocery shopping for their home.

The Father's Position on Access

[23] The father indicates that he has encouraged the boys to resume access with their mother and that access is safe and they should not be worried or scared. However, they indicated for several weeks they wanted a break and did not want to attend for access; that they are older and should have a say in their access schedule. N.H. did agree to attend for access for the Easter weekend on April 10 to 12. J.H. did not want to attend for in-person access but is happy to call, text, Skype, or Google Hang with the mother. The mother's concern, which is a valid one, is that due to his special needs J.H. requires a routine, and he needs to have an expectation that access will resume so that his routine is maintained.

[24] The father states that the boys have taken the message to "stay home" seriously. They are not comfortable going to public places such as the grocery store; are not seeing their friends or extended family members in person; and are hand-washing regularly.

Analysis and Findings

[25] I understand that the mother may have further concerns regarding numerous breaches of the final order of July 22, 2013, but my focus is on the urgent matter of reinstating her access with the children, which hopefully has been resolved on consent.

[26] This case has a long and acrimonious litigation history, which is exacerbated by these very concerning times amid the COVID-19 crisis. As Justice Pazaratz stated in [Ribeiro v. Wright], "In these troubling and disorienting times, child need the love, guidance and emotional support of both parents, now more than ever".

[27] This may mean that a parent must forego access if another parent is subject to specific personal restrictions due to health concerns. If the father had been clear that he was concerned that his household may have been exposed to COVID-19 and they all needed to self-isolate, the mother stated at the hearing of the motion that she would not have forced having the children for her March Break access. The mother now questions whether or not this information is actually true. If the father has also been clear that the children were very concerned about leaving their home, which is understandable in these unsettling times and particularly given their special needs, and the mother was receptive to this information, this matter may not have had to be brought to the court. Unfortunately, Voice of the Child Reports are not available at this time through the Office of the Children's Lawyer to get a true picture of the children's views.

[28] What is clear, and as Justice Pazaratz stated, "Right now, families need more cooperation. And less litigation". [Ribeiro v. Wright]

[29] Both parties need to be sensitive to the children's wishes and regularly communicate with each other to ensure that the children feel safe in both households. This will require cooperation between and patience by both parents. Threats to contact the police to force issues at this time are not helpful and may, in fact, not be safe.

[30] This matter is next in court by teleconference on April 28, 2020 at 8:45 a.m. for an update regarding access, and I would encourage the parties to work together to resolve this issue.

Released: April 16, 2020

Signed: Justice K.S. Neill