Court File and Parties

Ontario Court of Justice

Date: April 24, 2020

Court File No.: Woodstock D60/15

Between:

T.P. Applicant

— And —

C.S. Respondent

Reasons for Judgment on Motions

Per: Covid-19 Protocol

April 24, 2020

R. Sandy Bruce ......................................................... counsel for the applicant(s)

Grant E. Rayner ......................................................... counsel for the respondent(s)

PAULL J.:

Background and Context

[1] As a result of Covid-19 separated families face additional and extraordinary pressures which impact their ability to make custody and access arrangements. The pandemic has also caused a suspension of all but urgent OCJ family matters.

[2] T.P. (mother) and C.S. (father) are the parents of two young children, L.S-P. born […], 2015 and R.S-P. born […], 2017. Each party has brought motions before the court on the basis of urgency.

[3] C.S. seeks orders for interim custody and primary residence, or alternately liberal access, as well as child and spousal support. He consents to liberal alternate weekend access for T.P.

[4] T.P. seeks an order dismissing the motion on the basis that it lacks urgency. She seeks to maintain the interim custody granted to her in the without prejudice order of January 6, 2020. She is agreeing to liberal access supervised by the paternal grandmother or other family members.

[5] There is also a claim by T.P. before the court for a restraining order which she is prepared to withdraw if terms limiting the parties' interactions are included in the custody/access order. This relief is consented to by C.S. and represents one of the few areas these parents appear to agree upon.

[6] I have reviewed and considered two affidavits each from C.S. and the paternal grandmother dated March 22 and April 12, 2020, and the affidavits of the applicant dated December 30, 2019, and February 20, and April 6, 2020.

Background and Evidence

[7] The parties began living together in September 2015. They separated in or about July 5, 2019, although they made the unfortunate choice to continue to reside under the same roof until December 23, 2019.

[8] On December 23, 2019 T.P. and the children left the jointly owned home after a dispute which involved C.S. taking a kitchen knife out to the driveway and threatening to cut the tires of T.P.'s car to prevent her from leaving.

[9] The paternal grandmother, who was present for the incident, appears to have been instrumental in de-escalating C.S. when she intervened and demanded that he return inside the home. Police attended and C.S. spent the night in jail.

[10] On January 3, 2020 C.S. was charged with assault with a weapon-spousal and uttering threats. He was put on terms to have no contact with T.P. or the children without exception. These criminal terms were not varied until March 12, 2020 when he pled guilty to a single count of uttering threat to damage property when he acknowledged he threatened to cut the tire on T.P.'s car. His criminal terms were varied at that time to permit contact with the children pursuant to a Family Court order made after that date, and for him to complete the MARC program prior to sentencing.

[11] Meanwhile, following the incident on December 23, 2019 T.P. brought an application and urgent motion for interim custody and a restraining order. This was personally served on C.S. on December 30, 2019. On January 6, 2020 when the motion was returnable C.S. was not present and the court made an interim without prejudice custody and restraining order in favour of T.P.

[12] The matter was next returnable before this court on February 10, 2020. C.S. had not filed responding materials but he had retained counsel and commenced an SCJ application which addressed the custody/access issues as well as financial and property issues between the parties.

[13] The next return date in this court was February 24, 2020 and counsel advised that there was a motion before the SCJ brought by T.P. to dismiss that action in favour of continuing the within action. That motion was before the SCJ on March 6, 2020 and was ultimately withdrawn by C.S. with the court ordering him to pay costs in the amount of $1500.

[14] The result of all this was that C.S. did not serve responding materials to T.P.s urgent motion or bring his motion before this court until April 2, 2020. By that time regular court operations had been suspended by Covid-19.

[15] The court conducted a case conference regarding the motions via teleconference on April 7, 2020 and heard submissions from counsel on the issue of urgency. Filing deadlines were ordered and the court directed that the motions would proceed as basket motions based on the written materials filed.

[16] At that time the court strongly encouraged the parties to resolve these motions on an interim basis without the need for the court to impose an order. The parties filed a consent to an interim order on April 9, 2020 consenting to access by C.S. for that weekend supervised by the paternal grandmother. The court granted the order and once again encouraged the parties to maintain their efforts to resolve the motions.

[17] Unfortunately, they were unable to do so, and a review of the lengthy affidavits filed makes it abundantly clear they view the situation in polar opposite terms and blame the other for the unfortunate circumstances their children have had to endure.

[18] Both parties went to painstaking lengths to outline all the negative behaviour of the other parent going back to when and how they first met which they allege support the orders that they each seek.

Allegations Regarding Parental Conduct

[19] T.P. alleges C.S. has a serious alcohol problem which resulted in a period of separation early in their relationship, and that led to violent and aggressive behaviour by C.S. which at times has been in front of the children.

[20] C.S. likewise alleges that T.P. uses alcohol excessively and that she behaves in an inappropriate and aggressive manner towards him at times.

[21] C.S. submits that he was a stay-at-home parent, having not returned to Toyota Manufacturing in 2015 after he took parental leave. T.P. continued to work at Toyota Manufacturing since that time. C.S. alleges that he has been the primary caregiver as a result, even when T.P. was not at work, because she would be either sleeping or frequently out all night with friends. He viewed this behaviour by T.P. as the primary source of conflict between the parties.

[22] T.P. disputes this and deposes that she was the primary if not sole caregiver of the children when she was not at work. She acknowledged C.S. was caring for the children while she was at work, however, was of the view that he refused to return to work and further that there were concerns with his ability to safely and appropriately care for the children.

[23] T.P. alleges an incident in July 2019 when she was at work and the children were in the care of C.S. As a result of C.S. not getting up in the morning L.S-P. left the home and was found outside sometime later by a neighbour. C.S. acknowledges this and indicated that he took appropriate action, including alarms on bedroom doors, additional latches on exterior doors, and that he now sets his alarm clock to get up half an hour before the children's normal time of waking up.

[24] T.P. also alleges that in November 2019 C.S. threatened to take the children from the home while intoxicated and that on another occasion in November 2019 locked her out of the home and threatened her with a stick by using it to hit furniture. C.S. responds that T.P. was out all night and returned home while L.S-P. was about to leave for school and that he did not want her there until L.S-P. had left so that her arrival would not upset him. C.S. alleges T.P. refused this request and barged into the home. He acknowledged that out of frustration, "I smacked the stick off the chair and lobbed it down the hall", however states that the children were not present, and he did not threaten T.P.

[25] The police attended the party's home as a result of this incident and assisted in arranging for T.P. and the children to spend a "cooling off period" away from C.S. C.S. indicates he protested at the time that the children should be permitted to leave with T.P.

[26] T.P. alleges that on December 4, 2019 C.S. was intoxicated at a school Christmas concert and was approached by the principal. She further states that on other occasions in December 2019 C.S.'s aggressive and threatening manner left L.S-P. shaking and crying.

[27] C.S. denies these allegations. He acknowledges loud arguments between the parties but states that neither party resorted to physical violence. He stated that he has never threatened or been a threat to either the applicant or the children. Any frustration he did exhibit he felt was because he was becoming "increasingly frustrated with the way the applicant was approaching her parenting responsibilities."

[28] Both parties agree that the circumstances continued to deteriorate significantly following July 2019 with both parties alleging the other's inappropriate behaviour increased in scale until the matter came to a head on December 23, 2019.

The December 23, 2019 Incident

[29] T.P. deposes that C.S. was consuming alcohol when she returned home on December 23, 2019. After the children went to bed she states that they had an argument which involved C.S. throwing the children's Christmas gifts down the stairs which caused the paternal grandmother, who was in the basement, to come up to investigate.

[30] T.P. attempted to leave the residence and C.S. threatened to slash her tires with a kitchen knife to prevent her from leaving. She deposes that he stated to her, with a knife in his hand, "talk to me, you're acting irrational, everything I do is because of you", and was in the driveway of the family home with the knife attempting to cut the tire of her car. She states that his mother was present and directed him back into the home. The police were called and T.P. left the home with the children that night because she was frightened for her own and the children's safety.

[31] C.S. deposes that he pled guilty on March 12, 2020 to a charge of uttering threat to damage property at which time he acknowledged that he threatened to puncture the tire of her car to prevent her leaving the home "yet again". His mother filed affidavit evidence supporting her son's position that it was T.P. who arrived home and was aggressive and hostile on that occasion.

[32] C.S. seeks an order that the children be immediately returned to his primary care on the basis of his concerns with T.P.'s behaviour, and that her allegations against him amount to a "malicious, transparent, repetitive series of self-serving offerings" designed to justify her unilateral and wrongful removal of the children from the home on December 23, 2019. He further submits that his plan supports the best interests of the children as it represents the status quo from prior to December 23, 2019 when he was the children's primary caregiver. He was also of the view that the risks related to Covid-19 are best mitigated by primary care with himself with his mother assisting, rather than T.P. and a non-family caregiver.

[33] T.P. seeks to maintain the temporary without prejudice custody order that was made on January 6, 2020 on the basis that C.S.'s motion is not urgent in the circumstances. She submits that if urgency is found, the order that would best serve the interests of the children would be interim custody and primary residence with her and that access to C.S. be supervised by the paternal grandmother or another family member.

[34] The family has not had court involvement with the CAS. T.P. does not have a criminal record and C.S. has no other criminal history other than his guilty plea for uttering threats to property which he entered on March 12, 2020 related to the incident on December 23, 2019.

The Law and Analysis

Urgency Standard

[35] These are both urgent motions brought pursuant to the OCJ Covid-19 Protocol and to Rule 14. Rule 14(14) states that there are no motions before case conference save and except as outlined in rule 14(4.2), and that is unless the court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required. Prior to the pandemic, urgency has been held to include abduction or threat of an abduction, harm or threat of harm, dire financial consequences, extreme situations justifying the court in acting immediately, and issues which are determined or deemed to be crucial, serious, vital or essential.

[36] Concerns due to Covid-19 and urgent motions brought during the suspension of regular court operations are subject to additional considerations. The issue of when an urgent hearing is justified in these circumstances was reviewed in detail by Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829.

[37] 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."

[38] 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.

[39] 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.

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

1. The concern must be immediate; that 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.

Assessment of Evidence

[41] Both parties have filed lengthy affidavits outlining extensive historic allegations against the other. Without the benefit of viva voce evidence and cross-examination the court is not in a position to assess the veracity of all these allegations. Neither is it necessary to do so at this time for the purposes of these urgent motions.

[42] Findings the court is able to make on the basis of the evidentiary record provided include that the parties have a long history of a mutually distrustful and dysfunctional relationship, particularly when alcohol is involved. This has often resulted in a negative if not toxic atmosphere in the home when the parties were together which both parties agree has exposed the children to inappropriate adult conflict.

[43] Regardless of which version of events is accepted, it is unfortunate that the parties did not manage their separation more thoughtfully after July 2019 when T.P. announced her intention to separate. The result was the children's continued exposure to their parents' deteriorating relationship with the level of conflict reaching the breaking point by December 23, 2019.

Credibility Findings Regarding December 23, 2019

[44] For the purposes of this motion I accept T.P.'s account of what happened on December 23, 2019 in that during a heated argument C.S. threatened to prevent her from leaving by using a knife to cut the tires of her car. Not only was this his stated threat, he was in possession of a kitchen knife in the driveway outside the home and only de-escalated when his mother intervened and directed him back into the house.

[45] I have concerns with the respondent's evidence as it relates to this event. In his affidavits he does not deny being in possession of the knife in the driveway or making the statement attributed to him by T.P. In his affidavit of March 22, 2020 outlining the events of December 23, 2019 he refers to only a "heated argument". Later in the same affidavit he indicates that on March 12, 2020 he pled guilty to uttering threat to damage property and acknowledged threatening to puncture her tire. In his affidavit of April 12, 2020, he states that at no time did he threaten T.P. with a knife, and only threatened to puncture her tire.

[46] In his affidavit material he goes to great lengths to attempt to draw a distinction between threatening T.P. and threatening the tire of her car. While I accept that he did not explicitly threaten her person with the knife he fails to recognize that by possessing a knife in a domestic dispute and threatening to use it to prevent her from leaving by slashing her tires is by its very nature threatening behaviour towards T.P. . In my view this is behaviour by him designed to control and intimidate and would have justified T.P. being fearful in the circumstances.

[47] I also accept for the purposes of this motion T.P.'s version of events on November 10, 2019. C.S. acknowledges hitting the furniture with a stick and throwing it down the hall. However, he attempted to draw the same distinction when he acknowledged doing this but that it did not amount to a threat against T.P. I disagree. This type of physically aggressive behaviour during a heated domestic argument is clearly threatening and meant to intimidate T.P. even if the behaviour was directed at furniture and there was not a specific verbal threat.

[48] I also have concerns with the evidence of the paternal grandmother regarding the events of December 23, 2019. In her first affidavit dated March 22, 2020 she states that T.P. was verbally attacking C.S., and that after the children went to bed, "a heated argument erupted between the two of them. Police were called. C. was taken by police to prevent a breach of the peace." There is conspicuous absence of any reference to a knife being involved and that she had to intervene to redirect her son which are important facts she later acknowledged in her affidavit of April 12, 2020. The omission this information in her first affidavit negatively impacts her credibility.

[49] C.S.'s behaviour has been aggressive and threatening at times, particularly on November 10, 2019 and on December 23, 2019 when he chose to possess a knife in the driveway during an argument and threatened to use it to damage T.P.'s car to prevent her from leaving. In the circumstances T.P. was justified to be frightened for herself and the children, and justified in leaving the residence with them that night.

[50] It is on this basis that I do not accept C.S.'s submission that T.P. wrongfully removed the children from the home on December 23, 2019 and that this amounted to self-help which together support both urgency and his interim custody claim. I do not find that her actions were unreasonable or self-help in the circumstances and were a justified response to his highly inappropriate and threatening behaviour.

[51] Neither do I find that her actions were responsible for C.S. not seeing the children until April 2020, or that she withheld the children from him. C.S.'s own behaviour resulted in the criminal charges and he has acknowledged by way of a guilty plea that he threatened to cut her tire with a knife. Until the guilty plea was entered, and the terms were varied he was under criminal terms to have no contact with T.P. or the children without exception. These terms he was under following the criminal charge which prevented his contact with the children were the result of his own actions.

[52] Further, T.P. was agreeable as outlined in her affidavit of February 20, 2020 to facilitate access through the paternal grandmother when C.S.'s criminal terms were changed. These terms were not changed by him until March 12, 2020 following his guilty plea. It is unclear why no variation was sought sooner by him and there is no evidence to suggest that any delay in the variation was the result of actions by T.P.

COVID-19 Urgency Analysis

[53] The applicants' urgent request in this case is based on his allegations regarding T.P.'s parenting choices and abilities, that he was the children's primary caregiver up to December 23, 2019, and that T.P.'s plan of using a non-family member to care for the children during the pandemic puts the children at unnecessary and serious risk.

[54] I take judicial notice of the fact that at the present time social distancing and Covid-19 awareness and safety precautions are both commonplace and critically necessary to ensure our individual and collective safety.

[55] I do not accept the submission that the addition of Covid-19 concerns create a circumstance of urgency in this case. While Covid-19 safety precautions are of grave importance their existence does not create a presumption of urgency. Specific evidence or examples of behaviour by the other parent are required which are inconsistent Covid-19 safety protocols.

[56] C.S. submits that T.P.'s use of a non-family caregiver for the children creates an "astronomically serious risk". In response T.P. provided detailed information about the safety precautions she employs to address Covid-19 and I find that these measures are appropriate. Following December 23, 2019 T.P. employed the use of a third-party care provider when she was at work, however, she confirms that at the present time her employment is on shutdown and she is the only caregiver for the children. When her employment resumes at some future date she has made arrangements to resume the use of the alternate caregiver.

[57] C.S. has also provided an appropriate outline of his Covid-19 safety precautions, and he intends to use his mother as a caregiver for the children when required.

[58] The use of a third-party caregiver, whether it is the paternal grandmother or a non-family member, does not in itself create Covid-19 safety concerns that establish urgency unless there is specific evidence that appropriate precautions have not been taken. Good parents will be expected to comply with Public Health guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Balbontin v. Luwana, 2020 ONSC 1996. This applies equally to any third-party caregiver the parents may be required to use whether a family member or otherwise.

[59] In this case both parents have established that they are Covid-19 aware and have taken appropriate safety precautions in their own homes and with any alternate caregivers. They need to set their differences aside and communicate in a manner that permits the sharing of important information about safety precautions they have each undertaken.

[60] On the information provided C.S. has not established urgency in the failure, inability, or refusal by T.P. to adhere to appropriate Covid-19 safety protocols going forward, including in the use of a third-party care provider when her employment resumes at a future date.

[61] None of this should be taken to say that concerns about Covid-19 are not well-founded, or that the parties should not consider adjusting the parenting schedule this Court will impose if the circumstances warrant it. 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.

Finding of Urgency

[62] Overall, C.S. has not established urgency on the grounds he has submitted. However, I am of the view that urgency has been established as a result of the circumstances that the children have been exposed to by the parents behaviour, and the strong likelihood that without court directed terms there is little hope these parties will agree on any parenting arrangements in spite of the current health crisis.

[63] Urgency is also established in my view on the issue of access to C.S. in that he is subject to criminal terms that any contact be pursuant to a Family Court order made after March 12, 2020. Without this court making an order directing terms of contact, the children will continue to have no contact with their father.

Best Interests of the Child Analysis

[64] I accept on a balance of probabilities that both parents have behaved in ways that let their relationship issues cloud their parental judgment at times resulting in the children being repeatedly exposed to parental conflict. However, C.S.'s physically aggressive and threatening behaviour in November and December 2019 including bringing a knife into a domestic dispute on December 23, 2019 are particularly concerning.

[65] Ultimately, the court must decide what custodial and residential order is in the child's best interests. The test for determining access is also what order is in the best interests of the child.

[66] In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.

[67] Children should have maximum contact with both parents if it is consistent with the children's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.

[68] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).

[69] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[70] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.

Parenting Plans

[71] Both parties parenting plans have merit. C.S. continues to reside in the family home and his mother is available to assist with any child care. This is the home where the children have lived, and he deposes that he and his mother are exercising strict Covid-19 safety precautions. After December 23, 2019 T.P. obtained appropriate rental accommodation in London. She is now on paid leave from Toyota Manufacturing and caring for the children full time. Prior to Toyota shutting down and when required going forward she has engaged an Early Childhood Educator to provide daycare. She has also arranged for academic support during the school shutdown and for art therapy for L.S-P. to assist him in dealing with the family breakdown. She outlined the extensive and specific Covid-19 safety precautions that she utilizes.

[72] C.S. submits that the status quo prior to December 23, 2019 was that he was the children's primary caregiver, and that it is in their best interests to maintain this now.

[73] It is clear on the evidence that C.S. was primarily responsible for the children while T.P. worked. However, I also accept on the evidence that both parties were responsible for providing primary care for the children at other times. C.S. acknowledged in his affidavit that the maintaining of the home was a 50-50 proposition and that they shared the work by one parent looking after the children while the other did household tasks. It also appears that that both parents participated in activities for the children outside of work hours.

Status Quo Principle

[74] While there is no presumption in favor of custody to either parent in any initial application following separation, the status quo – and avoiding the reckless creation of a new status quo- are important considerations at the interim custody stage is. Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[75] It is a long standing legal principle that absent compelling evidence that an immediate change is required, the status quo is ordinarily to be maintained until trial. In other words, in making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child's best interests. The reference to status quo, in a fresh separation entails a look at the status quo when the family was together.

[76] Through the lens of the child's best interest the court must determine what temporary living arrangements are the least disruptive, most supportive and most protective for the child. If appropriate, the status quo of the child, that is --the living arrangements with which the child is most familiar, should be maintained as closely as possible.

[77] The physically aggressive behaviour of C.S., particularly on December 23, 2019 when he chose to bring a knife into a domestic dispute provides compelling grounds to place the children in the temporary care of T.P. even if C.S. provided a majority of primary care prior to that time.

[78] Further, T.D. has had the children in her primary care since December 23, 2019 and there is no evidence to support that they are not being appropriately cared for, or that appropriate Covid-19 safety precautions have not and will not be undertaken. She has arranged for art therapy for L.S-P., and that his academic needs will be met during the school shutdown. She also outlined in her affidavit of February 20, 2020 a commitment to facilitate access once C.S.'s criminal conditions were varied.

[79] The children have been in T.P.'s care pursuant to an interim without prejudice order made on January 6, 2020. C.S. chose not to attend the first return of that motion although duly served and chose not to file responding material in this proceeding until April 2020. Without prejudice orders have a limited "shelf-life" in that the longer they are left in place, the less relevance the without prejudice designation has. C.S.'s delay in filing his responding materials in this court has resulted in the children having a significant amount of time to settle into the current arrangement, and I accept that they have settled in their mother's care and that their needs are being met by her.

[80] Given the concerns related to C.S.'s behaviour on December 23, 2019, the 4 months that the children have been residing with T.P., and the evidence of the appropriate care she has provided, I am of the view that maintaining placement of the children in her temporary care is in the children's best interests at this time.

Access to the Respondent

[81] However, as a result of his criminal terms the children have spent very limited time with C.S., and T.P. acknowledges that a meaningful relationship with him is in the children's best interest. T.P. seeks that C.S.'s access be supervised at the present time by the paternal grandmother or other family member.

[82] Supervised access may be appropriate in certain cases to address safety concerns. While C.S. has responded to parental conflict at times in November and December 2019 in a physically aggressive and highly inappropriate manner, I am not of the view that his access need be formally supervised going forward. Appropriate terms governing each party's behaviour, and to limit the parents contact are sufficient. It would also be appropriate for the grandmother to be present for the first 4 visits to ensure the transitions occur without incident.

[83] The behaviour of both parents exposed the children to adult conflict. In my view, that the parties continued to reside together after T.P. made the decision to separate in July 2019, only exacerbated the relationship difficulties that ended in the unfortunate events of December 23, 2019. While C.S.'s behaviour on that date was particularly concerning, both parties share the responsibility for exposing the children to the deteriorating conditions in the home.

[84] I am also of the view that the incident in July 2019 when L.S-P. was able to leave the home unattended when under the care of C.S. does not in itself warrant that his access now be supervised. While a significant incident, C.S. acknowledged it and took appropriate steps to ensure that it did not happen again.

[85] The family has not had CAS involvement, and the only police involvement was on November 10 and December 23, 2019. I find that both parties inappropriate behaviours which exposed the children to adult conflict are largely situational related to the deterioration of their relationship prior to December 23, 2019. In the circumstances I am not of the view that either parent poses a safety concern to their children if they are no longer residing together, if they are both under an alcohol prohibition while the children are in their care, and are subject to other terms to limit their contact and the children's exposure to adult issues. In other words, the risks to the children are greatly mitigated by the parties no longer residing under the same roof, and the remaining risks can be addressed with court ordered terms.

Joint Custody Considerations

[86] With respect to the interim custodial designation, this is not a case where I have confidence that the parties will be able to communicate effectively going forward. Even prior to separation there is little evidence of effective communication and problem-solving even with the assistance of two experienced family law lawyers. I also note that neither party is seeking joint custody as an alternative to their claim for sole custody in the motions.

[87] In the circumstances as they presently exist, this is not a case where joint custody is workable. The children have been repeatedly exposed to the conflict between the parties and to impose an interim order for joint custody would only increase the likelihood of more conflict and dysfunction, and risk the children being exposed to it.

[88] For these reasons it is in the children's best interests that the custody order in favour of T.P. made on January 6, 2020 continue on an interim basis.

[89] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the children. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of the children support an interim order for sole custody to T.P. with liberal and unsupervised access to C.S.

Spousal Support

[90] With respect to the claim for spousal support, insufficient evidence has been filed by C.S. to establish urgency and this portion of the motion shall be adjourned to be spoken to on the return date.

[91] There is clearly a disparity in income with T.P. working at Toyota Manufacturing and C.S. now in receipt of Ontario Works, and T.P. was clearly the soul breadwinner during the relationship. However, there was little other evidence provided to establish the dire or critical financial circumstances that are required to establish urgency.

[92] It was left unclear on the evidence how or if the parties are maintaining payments on the jointly owned home. C.S. indicates he is ready, willing, and able to return to work and is hopeful of returning to Toyota Manufacturing, although there is no current offer of employment. C.S. indicates that his mother is prepared to purchase the parties' jointly owned home so that he can maintain it as his family home. T.P. has also not filed a financial statement as required by the Rules.

[93] While the respondent has not established urgency on this issue, there are indices present that support a claim for spousal support until such time as C.S. returns to work, particularly given that T.P. has been the only one working and C.S. cared for the children while she was doing so.

[94] The parties have no doubt gone to great effort and expense to prepare the voluminous evidence they have to support their claims in both OCJ and SCJ. These resources could have been put to better use in these uncertain times. Both parties, with the assistance of counsel, should carefully consider this issue and the financial issues between them before this matter returns to court.

Observations Regarding the Paternal Grandmother

[95] I also make the following observation of the paternal grandmother. While I have noted a concern with her initial characterization of the December 23, 2019 incident, I accept that she has been involved in these children's lives and may be able to provide important support going forward, particularly if both parents are once again in the workforce.

Encouragement to Resolve

[96] I repeat the following comments of Justice Pazaratz in Ribeiro v. Wright, supra:

22. 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.

23. 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.

24. 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.

[97] With these points in mind the parties in this case are once again encouraged to do whatever is necessary to improve their communication and cooperation to ensure that the children are kept safe in these unprecedented and uncertain times, and to agree upon any modifications to the parenting and financial arrangements that are necessary, while being mindful of the importance that the love, guidance, and emotional support the children need and receive from both their parents.

[98] Life in many respects has come to a virtual an unprecedented standstill because of Covid-19. However, these children need, and this Court expects, their parents to change how they have related to each other and to work together in a less litigious and accusatory fashion and in a more child focused manner.

Order

[99] On the basis of all these considerations an interim order shall issue as follows:

1. Custody and primary residence of the children with the applicant.

2. The applicant shall consult with the respondent concerning major decisions affecting the children's health, welfare and education.

3. The respondent to have access to the children as follows unless otherwise agreed in writing by the parties:

a. While the oldest child is attending school, alternate weekends from Friday after school to Sunday at 6 PM.

b. For as long as the child's school is suspended as a result of Covid-19, the alternate weekend access shall be extended from Thursday afternoon to Monday afternoon.

c. One other midweek daytime visit per week as agreed between the parties.

d. During the months of July and August there shall be a week about parenting arrangement with exchange times and on a schedule as agreed between the parties.

e. Such other times as agreed including an equitable sharing of holidays.

4. The maternal grandmother shall be present throughout the respondent's first 4 visits with the children following the release of this order.

5. Without exception, neither party shall consume alcohol 12 hours prior to or during any periods of care and control of the children.

6. Neither party shall be permitted to communicate with the children or to expose them to discussion about adult issues, or to negative or derogatory language about the other parent or their family.

7. Unless otherwise agreed by the parties, they shall limit their communication to a written communication book which will travel with the children, or to communication indirectly through the paternal grandmother.

8. Unless otherwise agreed in writing by the parties, they shall only attend at each other's residence for scheduled pickups and drop offs, and shall remain in their vehicles in front of the home.

9. The parties shall not communicate with each other during access exchanges or otherwise in the presence of the children.

10. The parties shall maintain strict Covid-19 safety precautions in each of their homes and shall immediately notify the other if the children, or either of them, or any third party having contact with the children exhibit any signs of infection.

11. Urgency has not been established on the evidence filed regarding spousal support and that claim is adjourned to be spoken to on the previously fixed adjournment date.

12. The applicant shall serve and file a sworn financial statement with attachments by May 15, 2020.

13. The interim without prejudice restraining order dated January 6, 2020 is hereby rescinded.

14. Once regular court operations resume, counsel shall attend the Court Office and ensure that their client's materials are appropriately filed in the Continuing Record.

In the circumstances of the Covid-19 emergency, these Reasons for Judgment are deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order. The parties may submit formal orders for signing and entry before normal Court operations resume, however, these Reasons are an effective and binding Order from the time of release.

Released: April 24, 2020

Signed: "Justice S. E. J. Paull"