Court File and Parties

Ontario Court of Justice

Date: 2020-05-29

Court File No.: Toronto FO-20-00015313-000

Between:

Matthew Cromwell Applicant

— And —

Nicole Lucier Respondent

Before: Justice Maria N. Sirivar

Heard on: April 24, 2020 and May 4, 2020

Reasons for Judgment released on: May 29, 2020

Counsel:

• Joseph Makari, for the Applicant
• Peter Carlisi, for the Respondent

SIRIVAR J.:

OVERVIEW

[1] This is the continuation of the Applicant father's motion for the resumption of access. On April 24, 2020 I found that:

(1) The status quo, which was undisputed, consists of the father having access at least every other weekend from Friday to Sunday and every Monday overnight; and

(2) Neither party established that a change to the status quo is in the child's best interest.

[2] Despite the Applicant filing a 143 page affidavit (contrary to the directive given), he did not address the issue of Covid-19. I ordered the parties to file further affidavits addressing the mother's position that access should be suspended due to Covid-19. They were to file any medical evidence and public health or government directives they intended to rely upon.

[3] The father filed a detailed further affidavit. The mother did not file any additional materials.

ISSUE

[4] The only issue before me is whether, as a result of the current Covid-19 pandemic, the father's access should be suspended.

BACKGROUND

[5] Matthew Cromwell and Nicole Lucier commenced a relationship in late 2014. There is one child of the relationship, Tessa Isabel Lucier-Cromwell born […], 2016. Ms. Lucier has one older child from a previous relationship. Mr. Cromwell has two older daughters from a previous relationship.

[6] The parties ended their relationship in November of 2018. Tessa has lived primarily with Ms. Lucier and spends time with Mr. Cromwell. At minimum, Tessa saw her father every other weekend from Friday to Sunday night and every Monday from daycare to Tuesday morning. On Mondays, Mr. Cromwell cared for Tessa so that Ms. Lucier could attend Alcoholic's Anonymous meetings.

[7] Access exchanges occurred at Ms. Lucier's apartment building. Mr. Cromwell would park and Ms. Lucier would bring Tessa downstairs. Mr. Cromwell would exit his vehicle to greet Tessa as she approached the car alone.

[8] When Tessa is with her father she also spends time with her two older half sisters and their mother. They do not live with Mr. Cromwell.

[9] In January of 2020, Ms. Lucier stopped allowing Tessa to have access with her father. She also stopped sending Tessa to daycare. Ms. Lucier made allegations of abuse against Mr. Cromwell to the Catholic Children's Aid Society. The allegations were investigated and Ms. Lucier's concerns were not verified.

[10] As is clear from the materials filed by both parties, there is a great deal of conflict between the parties. The conflict continues to escalate. Ms. Lucier was charged criminally and cannot have contact with Mr. Cromwell except in accordance with a family court order.

[11] Mr. Cromwell commenced an Application and brought an emergency motion seeking a long list of relief including shared parenting and police enforcement. That motion was adjourned as it was not brought properly. In the intervening time, as a result of the Covid-19 pandemic, the motion was further adjourned. Leave was granted to address the issue of access by teleconference.

POSITIONS OF THE PARTIES AND EVIDENCE

Mother's Position

[12] Ms. Lucier takes the position that access should be suspended for the duration of the pandemic. In support of the position she deposes as follows:

"I am open to Tessa having a relationship with her father if her safety and wellbeing is not in question. Given the current Covid 19 situation in the world at the moment and the unconfirmed possible cases of the virus in my building, and my health issues which makes me and Tessa susceptible to the virus I do not feel it is in Tessa's or Matthews best interest to have her travelling back and forth possibly exposing her and both my home and Matthews home with the virus at this time.

Given this fact and she is now used to not going with him I believe it to be in her best interest to wait till after the pandemic is lifted and with the assistance of professional we come up with a plan to ensure her safety in both homes by revisiting the idea of counselling with York Town Family Services or such other organizations the court and or Society feel would be best suited for our situation."

[13] Ms. Lucier provides very little detail about her health. She was prescribed antibiotics for strep throat in April which caused her to self isolate because her immune system was "down". She also describes having suffered from PTSD and a Panic Disorder. There is no other medical evidence proffered by Ms. Lucier.

[14] The balance of Ms. Lucier's affidavit describes the history of her relationship with Mr. Cromwell and the reasons for the break up. She also deposes that she does not like Mr. Cromwell's choice in women and the fact that they interact with Tessa. She describes Tessa having told her she misses a friend of Mr. Cromwell's that she met.

[15] In argument, Ms. Lucier indicated that she also opposes telephone and video access during the pandemic.

Father's Position

[16] Mr. Cromwell's position is that I should order a week about parenting schedule. In the alternative, the status quo should resume. In so doing, however, he modifies that status quo to add an additional overnight access visit.

[17] Mr. Cromwell proposes that access exchanges be facilitated by a third party and names five potential facilitators. He also seeks police enforcement of access and make up access.

[18] Mr. Cromwell's principle argument is that the Ms. Lucier has withheld Tessa since January 6, 2020 for reasons unrelated to Covid-19. Rather, she is using the pandemic as a convenient excuse.

[19] He filed a detailed supplementary affidavit which describes the steps he has taken (or have been taken by his building management) to ensure compliance with Covid-19 public health directives. These included:

(1) he stopped working outside the home;

(2) his building is undergoing enhanced cleaning, has implemented social distancing in the elevator, has closed amenities and has provided hand sanitizer;

(3) he is practicing social distancing and proper hand hygiene;

(4) he regularly cleans/disinfects his home;

(5) he avoids non essential trips into the community; and

(6) he has only had contact with his other daughters and their mother.

[20] Mr. Cromwell further deposes that he has not needed medical attention and has not been exposed to anyone with Covid-19.

APPLICABLE LAW AND LEGAL PRINCIPLES

[21] The Covid-19 pandemic, in and of itself, cannot justify the suspension of parental access, particularly where there is evidence that appropriate precautions are being taken. As the court in Ribeiro v. Wright noted:

A blanket policy that 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.

[22] Generally, there should be a presumption that existing parenting arrangements and schedules should continue, subject to any modifications that may be necessary to ensure that all COVID-19 precautions are adhered to.

[23] The status quo should not be lightly interfered with unless there are compelling reasons to do so. A parent cannot simply engage in self-help. If the parent fears that the status quo may compromise the child's well-being, or the health of a person in the home, specifics must be provided, including a medical report.

ANALYSIS

[24] Ms. Lucier does not deny withholding Tessa from her father beginning in January of 2020. She does not deny that the allegations of abuse she made were not verified by the Catholic Children's Aid Society. She provided no evidence to support her contention that Tessa is more susceptible to Covid-19 or that her own immune system is compromised. The motion was adjourned and she was provided an opportunity to file a supplementary affidavit and she failed to do so.

[25] Mr. Cromwell's evidence, which was not contradicted, makes it clear that he is taking the necessary precautions in his home, he is social distancing and he is avoiding non essential trips to the community in order to avoid exposing himself and Tessa to Covid-19.

[26] I find that Ms. Lucier has not established that the status quo should be suspended due to Covid-19. There is no basis to justify disrupting Tessa's right to have access with her father.

[27] Two aspects of Mr. Cromwell's proposal, however, are not consistent with the public health guidelines. First, he suggests that a third party could facilitate access exchanges. Second, he sought to have his two older daughter and their mother spend time with Tessa during access, as they had been doing. This would expose Tessa to three or four other people who are not part of her household, contrary to social distancing requirements.

[28] This decision is grounded in Tessa's best interest. I am concerned about the escalating conflict between her parents. They are so committed to their conflict that it appears they have lost sight of how their collective actions impact Tessa.

[29] Ms. Lucier has weaponized the Covid-19 pandemic in her battle against Mr. Cromwell. There is no legitimate medical reason to invoke the Covid-19 pandemic. Rather, it provided an opportunity to justify withholding Tessa from her father. This fact is made clear by Ms. Lucier own affidavit evidence and her arguments on the motion. For instance, she argued that there should not even be phone or video access due to Covid-19. She points to the fact that Tessa now is "used to" not seeing her father to support her position. Ms. Lucier fails to see the tragedy in that, if it is true.

[30] We are living through very difficult times. From a child's perspective, the Covid-19 pandemic has turned all aspects of day to day life upside down. Children, who by virtue of age and limited life experience, are less able to understand and cope with dramatic changes in their lives. It is incumbent upon parents to reassure and comfort them through their words and actions.

[31] Similarly, Mr. Cromwell has been aggressive and almost belligerent in his demand for shared parenting and other relief. He has disregarded court processes and instructions, ignored court orders and mischaracterized findings of the Court. For instance, it was ordered and the parties were advised repeatedly that the only urgent issue was the resumption of access. Mr. Cromwell, however, continued to lead evidence and make arguments about week about access, police enforcement and make up access. Additionally, despite having made a finding with respect to status quo, Mr. Cromwell attempted to reargue the issue when granted leave to file a supplementary affidavit addressing Covid-19 to correct omissions in his original materials.

[32] The Court is operating with limited resources due to the Covid-19 pandemic. It is expected, at minimum, that counsel and parties will read and follow practice directions, abide by court orders, follow court process and not bombard court staff with questions whose answers can be found in directives and on the court website. Doing so will enable the Court to optimize its ability to address urgent matters.

ORDER

[33] Based on the foregoing, the Court orders:

(1) The Applicant shall have access as follows:

(a) every other week from Friday at 4:30 p.m. to Sunday at 7:00 p.m. beginning June 5, 2020;

(b) every Monday from 4:30 p.m. to Tuesday at 9:00 a.m. beginning June 8, 2020;

(c) telephone or video access every day at 7:00 p.m. (before bedtime) for up to 15 minutes beginning May 29, 2020;

(2) There shall be no one else in Mr. Cromwell's home during access and he must continue to practice social distancing and continue to follow public health directives;

(3) Access exchanges shall not include any third parties. Mr. Cromwell will wait outside his vehicle for Ms. Lucier to escort Tessa downstairs;

(4) In the circumstances of the Covid-19 emergency, these Reasons for Decision 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 once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release;

(5) The proceeding is adjourned to July 6, 2020 at 2:00 pm for a Case Conference. Case Conference briefs are to be served and filed in accordance with the Covid-19 Protocol.

(6) The Dial-in Instructions for a teleconference are as follows:

Phone number to call: […]

Conference ID: […]

(7) If the Applicant seeks costs, he may serve and file cost submissions no more than three pages (double spaced and 12 point font) in accordance with the Covid-19 protocol by June 15, 2020. The Respondent shall serve and file a response no more than three pages (double spaced and 12 point font) in accordance with the Covid-19 protocol by June 29, 2020.

(8) Cost shall be argued on July 6, 2020.

Released: May 29, 2020

Signed: Justice Sirivar