Court File and Parties

Date: April 20, 2020

File: 1072/17

Ontario Court of Justice

Applicant: Aniqua Tashim Rahman Antora

Counsel: Ms. C. Desai

Respondent: Mohammad Masurour Alam

Counsel: Mr. C. Mamo

Before: Justice Philip J. Clay

Endorsement

Teleconference Hearing of a Motion

Background

[1] The Respondent father filed a Notice of Motion seeking, among other things, a resumption of his parenting time with the 3 year old child Isaac and police enforcement of the court order. His motion, affidavit and book of authorities were served upon the applicant mother through counsel on April 7.

[2] On April 8 I found that the matter was prima facie urgent and scheduled this matter to be heard on April 16. I set timelines for the delivery of responding and reply affidavits. I read the mother's responding affidavit of April 9 and the father's reply affidavit of April 15.

[3] In December 2019 this matter was scheduled for the father's motion for expanded access which was to have been heard on March 30/20. This court date was adjourned due to the health crisis. Prior to the motion being heard the father filed an offer to settle which was accepted by the mother on February 19/20.

[4] The said agreement provided for access as follows:

1. Every other weekend from Friday after daycare to Monday before daycare.
2. Every Wednesday from after daycare to Thursday before daycare.

[5] The father is subject to a no-contact order with the mother due to an outstanding criminal charge. The exchanges through the daycare worked well for the limited amount of time that they were in place. The last access visit before the emergency health restrictions were put in place was Wednesday March 11. The father was to have access on March 18 and then the weekend of March 20-22. That access did not occur. Emails ensued between the father and the mother's partner Mr. Rezwan. Counsel became involved. The mother's position was that due to the health crisis she had chosen to self-isolate with Isaac in the home. She did not immediately tell the father about her decision. The father brought a motion for access on March 23. The motion was resolved before it was heard. The mother agreed to resume access on the father's scheduled weekend of April 3 and to extend that access to Tuesday April 7 to make up for the fact that there had been no access from March 11 to April 3. There was to be further make-up access.

[6] On April 2 after the agreement was reached Mr. Rezwan, without mother's knowledge at the time, imposed 22 COVID 19 conditions that the father must follow to ensure the safety of the child during access. The father objected to the unilaterally imposed conditions but agreed on a without prejudice basis to ensure that access resumed. As noted access occurred from April 3-7. In this period the mother through counsel took the position that the access times needed to be changed as the daycare was no longer available as an exchange place. The mother wanted to have access from Friday at 8:30 a.m. to Tuesday at 8:30 a.m. and to eliminate the mid-week access. The father then brought his motion.

[7] After the filing of the father's motion and my endorsement of April 8 the parties agreed to some make-up access from April 10 to 14. The regularly scheduled Wednesday April 15 access did not occur.

Issues

[8] The issues before the court are as follows:

1. Should the parties agreement of February 19/20 be complied with without any changes to dates or times?

2. Should the times of access be changed to address COVID 19 concerns?

   • a) If so should the access change to one longer block of time within a 14 day period or
   • b) Should the access only change to address the fact that the child can no longer be picked up and dropped off at daycare.

Submissions

The Father's Position

[9] Mr. Mamo stated that if the mother wanted to change the terms of the without prejudice order she should have been the party to bring the motion. Instead she unilaterally withheld the child from March 11 to April 3. The onus is on the mother to show why this family cannot follow the agreed terms of access. On February 19/20 parties came to a written agreement as there was an offer to settle and it was accepted.

[10] Mr. Mamo said that the father recognized that the times might need to change due to the unavailability of daycare. While access has re-started as a result of the motion brought March 23 and this motion of April 7 the mother was still seeking a fundamental change in the access arrangements. The father said that such a change could not be justified as being due to COVID 19 health concerns.

[11] Mr. Mamo emphasized that the February 19/20 agreement included weekly mid-week overnight access to address the fact that otherwise the 3 year-old child would not have in person contact with the father for up to 10 days. The mother's proposal for access until the health crisis ends would result in Isaac not spending in person time with his father for 9 straight days. The mother had offered video contact but at 3 years of age it was difficult to interact that way and the father had concerns with the mother being present during the entire call.

[12] Mr. Mamo referred to the COVID 19 case law. He noted that in Riberio v. Wright, 2020 ONSC 1829, Justice A. Pazaratz stated:

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.

[13] Mr. Mamo emphasized paragraph 7 in which the court stated that there is a presumption that existing orders apply. He then referred to the provisions of the decision that addressed the responsibilities of separated parents during the health crisis. In paragraphs 21 to 24 of this decision Justice Pazaratz stated:

21. 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. 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.

22. Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and 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. In family court we are used to dealing with parenting disputes. But right now it's not "business as usual" for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don't take parenting responsibilities or COVID-19 seriously.

[14] Mr. Mamo noted that the mother had not provided any specific health risks that would be raised by a continuation of the agreed upon schedule. Both parties had committed to following all provincial guidelines. The mother had stated that Isaac has asthma as did Mr. Rezwan's two children and this put them at increased risk. She wanted to minimize the times that Isaac left her home. Her proposal had only two in person exchanges between the father and Mr. Rezwan whereas the existing schedule had four. Mr. Mamo noted that the mother had agreed to the father having extended overnight time so he knew how to deal with Isaac's asthma. The child was being exchanged at the lobby of the father's apartment building but he was fine to exchange at his apartment door so there would be less people around.

[15] Mr. Mamo referred to two other cases that were set out in his case brief. He noted that in Le v. Norris, 2020 ONSC 1932, the court found that as the mother was the party withholding that she should have brought the motion. In that case the court did order police enforcement of the order. The father sought police enforcement because the mother was initially very reluctant to agree to access, she then agreed on February 19/20 to an expanded schedule but reneged prior to the March 18 visit and withheld the child. He asserted that it required a motion on March 23 to get access started and even then the mother changed the terms before the first visit requiring a second motion. This demonstrated a pattern of access resistance that warranted a police enforcement clause.

[16] Mr. Mamo also referred to Skuce v. Skuce, 2020 ONSC 1881. In that case the parties had just agreed upon an access schedule and the mother refused to implement it due to her stated concern that the father would not abide by emergency health guidelines. Justice Doyle held that the court could not condone a party wilfully breaching a court order. He found the father's motion to be urgent and held that the party's agreement must be respected notwithstanding the health crisis as there was no reason to think the father would breach provincial guidelines.

[17] Mr. Mamo filed three different draft orders which was very helpful.

Mother's Position

[18] Ms. Desai said that the mother had been in touch with the father when the daycare was cancelled on March 16 and he should have known that there would be no access on Wednesday March 18. She said that the mother felt she was acting responsibly in isolating herself and the child for 14 days as there was a great deal of uncertainty at the time of the announcement of emergency health measures. She acknowledged that the mother agreed to re-start access on April 3 and then her partner imposed conditions on April 2 before the resumption. She said that all of the conditions were reasonable and were presented by Mr. Rezwan in a clear and polite manner (he apologized for making them non-negotiable).

[19] The mother decided to present a plan for one block of access. The mother's position was that the health crisis required parents to adjust their plans. She said that having the 3 year old child change homes once (two exchanges) during a 14 day period was safer than doing it twice (four exchanges). She stated that the father lived in a large apartment building and the child would necessarily come close to others when going there for access. She had added video access so that the child would have contact with his father during the longer gaps created by her proposed new schedule.

[20] The mother also noted that while Mr. Rezwan, like the father, was working from home he did have limitations on when he could do access exchanges. He was not available to exchange the child at 5 p.m. in the afternoon and he was not available to exchange at 8:30 a.m. on Wednesday or Thursday mornings. This meant that with the daycare closed the Wednesday overnight to Thursday access could not occur.

[21] The mother said that the best plan was to have access extend from Friday at 8:30 a.m. to Tuesday at 8:30 a.m. as it had on April 3 to 7.

Discussion with Counsel

[22] It was not clear in the affidavit material why Mr. Rezwan could not exchange at 5:00 p.m. or on Wednesdays or Thursdays at 8:30 a.m. (This caused the father to suspect that he was still working outside of the home). It was simply presented that he could not do exchanges that would accommodate the existing schedule. It was understood that with the daycare closed Mr. Rezwan was the only person who could exchange the young child with the father.

[23] The parents were on the teleconference. In order to be in a position to resolve the matter I needed to know all of the options available. I asked questions of the mother and learned that Mr. Rezwan was available to exchange the child on Friday and Monday mornings at 8:30 a.m. in addition to the Tuesday 8:30 exchange time contained within her proposal.

[24] This need to have all available options and all relevant facts set out in the affidavit material is especially pronounced during this time when judges do not have access to the paper files and counsel is not sitting with their client and available to get updated information on a moment's notice. While a court will generally decide a matter based upon an option provided by one party or the other (as opposed to creating a third option) there are situations like this one where other plans need to be examined. In this case the father did set out in one of his three draft orders a proposal for access on the non access weekend from Monday at 8:30 a.m. to Tuesday at 8:30 a.m. I was not prepared to consider making an order if I was not sure that the mother and her partner could comply.

Decision

[25] I should begin by noting that when this motion was first brought on April 7 it was in the context of a lengthy unilateral denial of access shortly after an agreement had been made. I issued an endorsement finding the matter to be prima facie urgent and scheduled this motion. I strongly encouraged the parties to resolve the matter.

[26] By the time the motion was actually argued on April 15 the parties, through counsel, had agreed that there would be continuing overnight access. The matter in issue had been narrowed to the dates and times of access. This is noted because a unilateral withdrawal of access is much more likely to be considered urgent at this time than a proposed adjustment to the times of access. This case like many others that depend on schools or daycares or restaurants for third party exchanges required a change to the terms of access. Parents should be able to make these adjustments without the need for a motion to the court. The key is proper communication of all available options.

[27] The end result of the motion here will be an adjustment in day and time to accommodate the fact that the daycare is closed and the mother's partner who does the transfers has limited availability to do exchanges. It is important to note though that this motion was not required due to a disagreement about days. This motion was required because the mother wanted to unilaterally change the basic structure of the access agreement which was that there would not be a long gap in contact between the three-year old child and his father.

[28] I have no doubt that the mother was legitimately worried about her son's safety with attending for access. Once the first motion of March 23 was resolved with a resumption of the access schedule and a plan for make up access this matter should have been resolved.

[29] I can understand why the father was upset about receiving a list of 22 conditions from the mother's partner on the eve of access resumption. The conditions themselves are not inherently unreasonable given the current realities but they should have been part of the negotiation of ongoing access during the health crisis. I am advised that neither party now requires that specific conditions be attached to an order. Both parties will comply with the provincial guidelines.

[30] I find that the court must follow Skuce and make it clear that unilateral changes to court orders or binding agreements cannot be condoned. The mother had the onus upon her to identify her concerns to the father and to propose an alternative that would address the concerns see Le v. Norris.

[31] The access agreement should be changed only as much as is necessary to address issues raised by the health crisis. In this case that meant working out a time and place for the exchange given the daycare closure. Mr. Rezwan was prepared to exchange the child at the father's home. He was apparently unable to do so at the times that the child would normally begin and end daycare. The mother should have advised the father in writing as to the specific reason that Mr. Rezwan could not comply with the daycare times.

[32] The mother wanted to increase the block of time that the father had Isaac but also reduce the exchanges by eliminating the mid-week access. This was not an objectively unreasonable proposal. Such a proposal though should have been made at the start of the health crisis not after three weeks of no access. It was possible that the father might have liked to have a longer block of uninterrupted access and he might have shared the mother's concern about access exchanges.

[33] As it happened the father had no access for three weeks and no specific reason other than the health crisis for denying all access. He had contacted counsel and he made it clear that he wanted to maintain the access schedule to which the parties had agreed. At this point the onus was upon the mother to set out specific reasons why the access could not occur due to the health crisis. The mother's only concern was that it was riskier to have four exchanges than two exchanges in a two week period.

[34] I find that the mother has not satisfied the onus upon her to prove that there were COVID 19 related reasons to change the access schedule. The mother implicitly acknowledged that she had no evidence that the father was not complying with health guidelines when she proposed a continuation of overnight access. There is arguably some risk in leaving one's home to go to another at this time. However, the case law is clear that in person access is not to be denied just because of the health crisis. There must be evidence that the other parent is not complying with health guidelines and that therefore the child is at more risk in the access parent's home than he is in the primary parent's home. There is no such evidence in this case.

[35] I accept the father's argument that video access to a 3 year old is a poor substitute for in person access. I also accept that a 9 day gap in access is significant for a child of this age. Unfortunately, it is not possible to simply restore the existing agreement and substitute exchanges by Mr. Rezwan for daycare exchanges. I will make an order that differs as little as possible from the agreement that the parties made. There will be alternate weekend access and mid-week overnight access. Due to Mr. Rezwan's availability the mid-week access will now be every Monday overnight to Tuesday. This will result in there still being a maximum of 5 days between access visits.

[36] I will not make an order for police enforcement as it would be very traumatic for this young boy if the police came to his parent's home. I am the case management justice and if there is non compliance with this order there will be consequences on the return of this matter.

Temporary Order

1. The Applicant shall have primary residence of the child Isaac Neil Alam born [DATE], 2016.

2. Until such time as the said child's daycare re-opens after the health crisis the Respondent shall have access as follows:

   • a) Every alternate Friday from 8:30 a.m. to Tuesday at 8:30 a.m.
   • b) Every Monday at 8:30 a.m. to Tuesday at 8:30 a.m.
   • c) The mother's partner Tasim Rezwan shall exchange the child with the Respondent at the Respondent's apartment building.

3. Upon the child's daycare re-opening the Respondent shall have access as follows:

   • a) Every alternate Friday from after daycare to Monday before daycare
   • b) Every Wednesday from after daycare to Thursday before daycare.

4. a) The Respondent may seek the costs for this motion by emailing the following to [EMAIL] by April 29/20:

   • i) A costs submission limited to two pages double spaced
   • ii) An offer to settle with an affidavit of service of same
   • iii) A bill of costs

   b) The Applicant may file the following to the same email by May 6/20:

   • i) A response submission limited to two pages double spaced
   • ii) An offer to settle with an affidavit of service of same.

5. This matter is adjourned to July 21st, 2020 in courtroom 202 at 10am for 45 minutes.

Justice Philip J. Clay