Court File and Parties

Date: May 19, 2020

Court File Number: 385/19

Ontario Court of Justice

Applicant: O.H.

Counsel: Anushika Anthony

Respondent: K.A.

Counsel: Robert Fernandes

Release of decision in writing. No parties/counsel present.

Endorsement

Justice M. Cheung

Overview

[1] This proceeding concerns two children, I.A., born […], 2008 (age 11) and D.A., born […], 2012 (age 7).

[2] The Applicant is their mother and the Respondent is their father.

[3] On May 11, 2020, the court heard the father's urgent motion seeking a schedule of regular parenting time for the child, I.A. These are the court's reasons and decision.

[4] The younger sibling, D.A., was not the subject of this urgent motion because she is currently residing full-time with the father and having no contact with the mother. There are criminal court conditions that prevent the mother from having contact with D.A.

[5] The father's position, when the motion was argued on May 11, 2020, was that the court should make a temporary order that he have parenting time with I.A. in accordance with the schedule proposed in the report of the Office of the Children's Lawyer. That recommendation, in essence, is a very detailed weekly schedule of time sharing between the parents, which would have I.A. spending time with his father, as follows:

• Three weeknights per week from after school to 8:30 pm (Mondays, Tuesdays and Fridays);
• One mid-week overnight from Wednesday after school to Thursday morning;
• Saturday evening from 5 pm to 8:30 pm; and
• An overnight from Sunday at 5 pm to Monday morning.

[6] The mother submits that I.A.'s access with his father should be suspended until COVID-19 concerns subside, and further that, it be subject to I.A. expressing a desire to spend time with his father.

Chronology of the Legal Proceeding

[7] The Application which commenced these proceedings was issued on April 19, 2019. In it, the mother seeks various heads of relief including sole custody, child support, spousal support and a restraining order against the father.

[8] The father's Answer dated May 22, 2019 seeks custody and/or access.

[9] On August 6, 2019, at the initial case management conference, the parties reached and filed temporary Minutes of Settlement. On the basis of those Minutes of Settlement, case management judge, Justice P. Clay made a temporary, without prejudice order, that:

• The children would reside primarily with the mother;
• The father would pay $1,133.61 in child support to the mother, for the benefit of the two children, based on the Child Support Guidelines table amount for an annual income of $74,649.45;
• The support order would be enforced by the Family Responsibility Office;
• The parties would share special expenses in proportion to their incomes of $24,136.00 (mother) and $74,649.45 (father);
• Access shall be determined by the parties;
• The parties are only to communicate via text and the communication will be limited to the well-being of the children;
• The parties will not speak ill of one another in the presence of the children and will not discuss the legal proceedings with the children;
• The father will provide the necessary authorization and consent to obtain all medical notes or reports for any pediatrician or psychologist that has treated I.A., forthwith; and
• The parties will not remove the children from the Province of Ontario without prior written approval from the other party.

[10] On November 1, 2019, I conducted a case conference with the parties and their counsel. Following discussions on that date, I requested the involvement of the Office of the Children's Lawyer.

[11] On December 6, 2019, the parties and counsel for the mother, participated in a telephone conference with me. The purpose of the telephone conference was for the court to get an update on whether or not the Office of the Children's Lawyer had accepted the court's referral. On that date, I was advised by the parties that an investigation and report of the Children's Lawyer pursuant to s.112 of the Courts of Justice Act would be completed.

[12] On January 17, 2020, the matter was back before case management judge, Justice P. Clay for a case conference. Following discussions, the matter was adjourned to May 15, 2020 for a settlement conference.

[13] On February 28, 2020, the report of the Children's Lawyer dated February 19, 2020 was filed with the court.

[14] On or about March 9, 2020, the father served a Dispute to the Report of the Children's Lawyer.

[15] On March 16, 2020, the Ontario Court of Justice suspended court operations to all but urgent family law matters. All non-urgent matters were adjourned for a period of 8-12 weeks.

[16] As a result, the May 15, 2020 settlement conference date was administratively adjourned to August 4, 2020.

[17] Requests by litigants to proceed with an urgent domestic matter are to be determined by a judge.

[18] On April 8, 2020, the father served and filed a 14B motion seeking to proceed with a motion, requesting various heads of relief, on an urgent basis. This was opposed by the mother whose position was that the father's motion ought to be heard after the resumption of court's operations, in the form of a long motion.

[19] On April 20, 2020, I determined that only the issue of the father's access/parenting time with I.A. was a matter that warranted leave for the court to hear a motion on an urgent basis and directed that the motion, on this narrow issue, be heard by way of telephone on a date to be set, after coordinating with counsel and the court schedule.

[20] On May 11, 2020, I heard the motion by telephone.

[21] Following completion of submissions, I agreed to accept very limited further evidence that was missing from the record, provided that it was served and filed by day's end on May 12, 2020.

[22] I also allowed counsel to file very limited and focused written submissions regarding this additional evidence only, provided that supplementary submissions were served and filed by day's end on May 13, 2020.

[23] This process was adopted by the court in order to balance the court's need for relevant information, with the need for urgent determination on the issue of the father's access with I.A.

[24] The mother did not comply with my directions and sought further leave to file additional evidence with a further day's extension. I will address this issue later in these reasons.

Background

[25] The parties married in May 2005.

[26] The mother moved out of the family home with the children in April 2019, while the father was out of the country, in Sri Lanka. She retained counsel and commenced these proceedings.

[27] They have been living in separate residences since that time.

[28] In the first month after their separation, the father was seeing both children during the daytime on weekends.

[29] In the months following this, the father began to see both children more frequently during the week, up to four times per week, without overnights.

[30] In August 2019, the parties agreed that both children would remain primarily with the mother and that access would be as the parties determined.

[31] From the fall of 2019 until early February 2020, the family followed a general pattern of time sharing wherein the father was picking the children up after school about three times per week for a few hours, but returning them at the end of the same evening. He was also seeing them for a few hours on both Saturdays and Sundays. Therefore, the children were seeing the father about five times per week, although sleeping every night at the mother's home.

[32] At the court appearance of January 17, 2020, the parties were in agreement that the children could start overnights with the father. The parties were awaiting the recommendations of the Office of the Children's Lawyer and negotiating a final parenting schedule.

[33] On February 4, 2020, following a joint investigation by the Peel CAS and the police, during which both children were interviewed, the mother was charged with Assault with a Weapon. The complainant in relation to the criminal charge is the younger child, D.A. The mother is subject to criminal court conditions that prevent her from communicating, directly or indirectly, with D.A. The conditions also prevent the mother from going to any place that D.A. is known to be. The mother and D.A. have not had any contact since that time.

[34] After the criminal charge was laid, on February 4, 2020, both children went to live with the father.

[35] The mother did not have contact with I.A. from February 4, 2020 until I.A. returned to her residence on March 4, 2020. During this month, the father attempted to arrange a parenting schedule in regards to I.A. The child wished to have contact with his mother. However, the mother preferred to postpone any resumption of contact with I.A. until after she obtained advice from a lawyer regarding the criminal charges and feedback from both the Office of the Children's Lawyer and the Peel CAS.

[36] On March 4, 2020, the mother advised the father, through counsel, that she would be taking custody of I.A. after school later that day and requested an access proposal from the father.

[37] On March 4, 2020, the father, through counsel, provided the mother with a detailed access proposal.

[38] I.A. resumed living with his mother on March 4, 2020 and has been there ever since.

[39] On March 5, 2020, the mother's counsel wrote to the father's counsel. In the letter, she did not comment on the access proposal contained in the father's March 4, 2020 letter. Instead, she stated: "Please provide your client's schedule for accessing I.A. I.A. is 11 years old and he will address his preferences with respect to access directly with the OCL investigator."

[40] On March 9, 2020, the father's counsel wrote to the mother's counsel and proposed the access schedule that he had previously proposed in his March 4, 2020 correspondence.

[41] All attempts to negotiate in-person access has been unsuccessful. I.A. has not seen his father or his sister in person since March 4, 2020.

[42] I.A. has had fairly regular but short telephone calls with the father (and to a lesser extent with his sister) since that time.

Issue for this Motion

[43] Both parties submit that a change to the order of Justice Clay dated August 6, 2019 in regard to I.A.'s access with his father is appropriate, although they do not agree as to what that change should be. Both parties concede that an order that says "access shall be determined by the parties" has not been, and is not currently, an order that appears to be functioning for the parties, who are at an impasse with respect to this issue. Both parties want this portion of the order to be varied.

[44] The order of Justice Clay dated August 6, 2019, at this time, remains on the record as a temporary without prejudice order. The significance of the "without prejudice" qualification to the temporary order becomes important on a motion to vary an order, because a party seeking to change a "with prejudice" temporary order has the onus of demonstrating that there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[45] In this case, both parties concede there has been a material change of circumstances, as required by s.29 of the Children's Law Reform Act, that warrants changing the existing access order. Accordingly, this threshold issue does not need determination by the court.

[46] The only issue for determination on this motion is what temporary order concerning I.A.'s access with his father is currently in his best interests?

Statutory Framework

[47] Subsection 28(1) of the Children's Law Reform Act sets out the court's powers in making custody and access orders, whether temporary or final. This includes the right to determine any aspect of the incidents of the right to custody or access (clause 28(1)(b)). The court may also make any additional order as the court considers necessary and proper in the circumstances, including an order limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child (subclause 28(1)(c)(i)).

[48] The test which the court applies in determining access is found in s. 24(1) of the Children's Law Reform Act which states that an order for access to a child shall be determined on the basis of the best interests of the child.

[49] In making this determination, I must consider the needs and circumstances of this child, who is 11 at this moment, as set out in the categories to be considered from subsection 24(2) of the Children's Law Reform Act.

[50] This subsection reads as follows:

Best interests of child - The court shall consider all the child's needs and circumstances, including:

(i) the love, affection and emotional ties between the child and:

1. each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
2. other members of the child's family who reside with the child, and
3. persons involved in the child's care and upbringing;

(ii) the child's views and preferences, if they can reasonably be ascertained;

(iii) the length of time the child has lived in a stable home environment;

(iv) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(v) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(vi) the permanence and stability of the family unit with which it is proposed that the child will live;

(vii) the ability of each person applying for custody of or access to the child to act as a parent; and

(viii) any familial relationship between the child and each person who is a party to the application.

[51] Subsection 24(3) of the Children's Law Reform Act sets out that the court shall only consider a parent's past conduct if it is relevant to their parenting. Subsection 24(4) sets out that in assessing a person's ability to act as a parent the court shall consider any violence and abuse against the other parent or a child.

Analysis

Should I.A. be Permitted to Decide Not to Have Access with His Father?

[52] The father submits that a specified access order should be made that follows the recommendations of the OCL.

[53] The mother submits that I.A. should not be forced to have in-person access with his father when he does not wish to do so. Additionally, the mother submits that it is not safe for I.A. to have access with his father as a result of COVID-19 because I.A.'s asthma places him at higher risk and because the father goes to work and uses babysitters for D.A. while he does so.

[54] With very few exceptions, all children benefit from having a loving relationship with both parents. In those unfortunate cases where parents separate and the child must live with only one parent, either the parents or the court will usually attempt to provide for "typical" or "normal" access to the non-custodial parent. This may be something like: alternate weekends, sharing of holiday time, special occasions, and so on. A parent who seeks to reduce normal access will usually be required to provide a justification for taking such a position. And the greater the restriction sought, the more important it becomes to justify that restriction. The most restrictive form of access is supervised access. See A.(M.) v. D.(J.).

[55] In this case, the mother seeks either a suspension of access or that the child be permitted to decline attending access with his father – both highly restrictive positions on the issue of access, requiring extremely compelling reasons to justify them.

[56] Justice Mossip in Reeves v. Reeves, [2001] O.J. No. 308 stated:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrated the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist's or doctor's. It is the responsibility of good parents to manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

[57] I.A.'s views and preferences should be taken into consideration in the determination of this access issue. However, it is but one factor amongst several that need to be considered. Furthermore, children's views and preferences need to be considered within the context in which they are expressed.

[58] The Ontario Court of Appeal stated, in Godard v. Godard, 2015 ONCA 568, in a case about a girl, who was 11 at the time she did not want to attend access with her father, that:

Although a child's wishes … should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt; Stuyt v. Stuyt; and Hatcher v. Hatcher, [2009] O.J. No. 1343 (Ont. Sup.Ct.).

[59] The mother argues that her situation differs from the situation in Godard because there were no specified terms in the court order that would allow her some leverage upon which to compel I.A. to attend access with his father. This argument was not persuasive in light of the fact that her evidence was void of any tangible examples of how she had ever tried to compel, or even facilitate, I.A. going for access with his father.

[60] The evidence of I.A.'s wishes has appeared as third party statements throughout this motion. His wishes, as expressed from time to time, have been tendered as statements coming from the mother, the father, Ms. Kuiack (OCL clinician), the Peel CAS worker (as recorded in the worker's casenote) and from the child's family doctor (as recorded in the child's clinical record).

[61] In December 2019, I.A. met with Ms. Kuiack on two occasions. Ms. Kuiack's report, which is adopted in her affidavit sworn on February 19, 2020, describes that I.A. was comfortable, at that time, spending time with his father, and in fact, I.A. wanted to begin staying overnight in his home.

[62] On February 4, 2020, the Peel CAS conducted an investigation following a disclosure by D.A. that her mother hit her. As part of that investigation, I.A. was also interviewed by the Peel CAS worker. Using a three houses interviewing tool, the worker ascertained from I.A. that he had no worries with respect to being at his father's house, that he felt that he and his father were getting along and that he wanted to spend equal amounts of time with each parent.

[63] The mother states that I.A. currently wishes to minimize his access with his father and he does not feel ready to interact with his father, especially physically. The mother states that the reason for I.A.'s aversion to spending time with his father is that I.A. is still suffering trauma from the father having forced I.A. to falsify events to the police, in order to orchestrate the criminal charge that was laid on the mother.

[64] The mother's evidence included the records from the child's family doctor. The records include three phone interactions that the doctor has had with the child, within the month of April 2020, while the child was with his mother. During all three telephone contacts, the child advised the doctor that he did not want to go to his father's place because he feared that his father wanted him to lie and that if he did not do as his father said, his father would make more trouble for this mother.

[65] The evidence is clear that, prior to the investigation which led to the laying of the criminal charges against the mother, I.A. was comfortable and content in the presence of his father. During the investigation by police and the Peel CAS, again, he expressed no worries with being with his father.

[66] I.A.'s statements of aversion regarding direct contact with his father appear to have suddenly appeared once he returned to live with his mother.

[67] The collective evidence of all third party professionals – Ms. Kuiack's report, the records of the Peel CAS and the records of the family doctor, satisfy me that I.A. has been placed by both parents in the middle of their custody and access dispute and that both parents have failed in shielding him from their conflict.

[68] The Peel CAS investigation summary states:

Disposition is investigation complete and transfer to ongoing services. There is ongoing post-separating caregiver conflict between the parents and both parents have agreed that they need support from the Society to help them manage their separation and to children adjust. The risk assessment level for this case is moderate, and the family needs support in order to mitigate the current risk.

[69] I.A.'s stated reluctance to have direct contact with his father must be considered against the backdrop of the very difficult loyalty bind he currently finds himself in and it also must be balanced against the evidence of the strong relationship he enjoyed with his father in the not so distant past.

[70] The reason expressed by I.A. to explain his reluctance to visit with his father is not compelling enough a reason to justify the significant disruption to the meaningful relationship between him and his father.

[71] Any conduct on the part of either parent that would have contributed to I.A. having developed such fears, must immediately stop.

[72] The Peel CAS is now involved with this family. This means that the family can access the services generated by this agency to assist them in managing I.A.'s fears and difficulties. The family doctor has also made a referral for I.A. to access the support of a child psychiatrist, which can be an additional support for him in dealing with the pressures and stresses that he is feeling.

[73] Accordingly, I find that I.A.'s in person access with his father should not be suspended as a result of I.A.'s expressions of reluctance.

Admissibility of the Third Party Medical Evidence

[74] The mother submitted that I.A. should not have in person access with his father because, due to a diagnosis of asthma, I.A. is a person at higher risk should he contract COVID-19. Particularly, she submits that it is too risky for I.A. to spend time with the father because:

• The father is not adhering to public health recommendations in his general conduct;
• The father's work requirements place him at higher risk of contracting COVID-19 and thus, placing I.A. at higher risk of contracting it as a result of the contact during access; and
• The father requires babysitting for D.A. when he goes to work. The added persons having contact with D.A. and the father, further increases the risk of both the father and D.A. of contracting COVID-19 which in turn would expose I.A. to contracting it during access.

[75] The father denied that he was not adhering strictly to the public health recommendations in his general conduct. He deposed that his work practices and babysitting plan for D.A. adopted prudent and strict preventative elements which would significantly decrease the possibility of contracting or spreading COVID-19 to I.A. during access. The father also denied that I.A. had asthma or, if I.A. did have asthma, the father had not been made aware of such diagnosis by the mother.

[76] At the hearing of this motion on May 11, 2020, in support of the mother's own description of I.A. as particularly vulnerable to the impacts of COVID-19 due to his asthma, the mother tendered the following evidence:

• The letter of I.A.'s family doctor, Dr. Malika Rajarathna dated April 9, 2020;
• A photograph of the child's two inhalers, both dispensed on December 18, 2019;
• The clinical notes of Dr. Rajarathna containing the doctor's records from her interactions with the parents and I.A. on February 14, 2020, April 9, 2020, April 15, 2020 and April 21, 2020; and
• The letter from Professor Rasnayaka M. Mudianse dated April 29, 2020.

[77] The father's counsel objected to the admission of the letter of Dr. Malika Rajarathna dated April 9, 2020, based on the lack of clarity in the manner in which it is written, based on the fact that it is unsworn and based on what counsel submitted was an opinion given on the very issue that the court is asked to decide.

[78] Rule 14 of the Family Law Rules governs the process for temporary motions.

EVIDENCE ON A MOTION

14(17) Evidence on a motion may be given by any one or more of the following methods:

1. An affidavit or other admissible evidence in writing.
2. A transcript of the questions and answers on a questioning under rule 20.
3. With the court's permission, oral evidence. O. Reg. 114/99, r. 14(17).

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

14(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14(18).

AFFIDAVIT BASED ON OTHER INFORMATION

14(19) The affidavit may also contain information that the person learned from someone else, but only if:

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; …

[79] Hearsay evidence may be admitted by the court should it be relevant, necessary and reliable.

[80] At the close of the submissions on May 11, 2020, mother's counsel requested leave of the court for a further opportunity to correct the deficiencies in Dr. Rajarathna's April 9, 2020 letter, by obtaining a sworn affidavit from Dr. Rajarathna.

[81] Information relating to I.A.'s health, particularly his respiratory health, is relevant to the issue that the court is asked to consider within the COVID-19 context.

[82] In Winton v. Lofranco, [2004] O.J. No. 3418, Justice S. Himel stated that: "When children are involved, if the evidence is relevant, necessary and probative to the matters in issue, the court should take an expansive and not a technical approach to its admission."

[83] Decisions made by this court concerning the lives of children and their families are important and should be made by the court having the benefit of the all relevant and material information available to them, in as reliable a form as possible taking into consideration the nature of the urgency in hearing the temporary motion.

[84] I allowed this indulgence as I felt that the court ought to have the best possible evidence relating to I.A.'s respiratory health that could be obtained within a reasonably short time frame. I also agreed to receive such further evidence from the mother, as I had already granted the father's counsel an indulgence to file expanded evidence concerning the relevant details of the father's babysitting plans, which was missing from the materials filed for May 11, 2020. Thus, allowing the mother to file better evidence relating to this important issue would therefore not cause any further delay to the completion of this motion.

[85] I gave both parties until end of day May 12, 2020 to file the additional evidence. The father met this deadline. The mother did not.[1]

[86] Ultimately, the affidavit of Dr. Rajarathna was sworn on May 13, 2020, and filed late, with a request for leave of the court to admit the affidavit notwithstanding its lateness.

[87] The affidavit of Dr. Rajarathna sworn on May 13, 2020 is admitted. Further delay is not caused by its lateness. The court received it prior to the close of the further written submissions.

[88] The prejudice of admitting this evidence is that the father's counsel does not have an opportunity to comment on it. However, I balance this prejudice against the court's need for reliable medical information about this child.

[89] Having admitted the affidavit of Dr. Rajarathna sworn on May 13, 2020, the letter of Dr. Rajarathna dated April 9, 2020 is not admitted. Its presence in the materials now is superfluous given the sworn evidence of the doctor, combined with the clinical notes.

[90] I find that the clinical notes of the doctor, for the purposes of a temporary motion is sufficiently reliable and trustworthy as a representation of the doctor's interactions with this child and his parents throughout the course of the primary care appointments. The deficiencies in the form of the letter, which make its content unclear, makes the letter an unreliable source of information. In any event, the letter is no longer necessary given that the court now has the sworn evidence of the same doctor. The prejudicial effects of the unsworn letter far outweigh any benefit to the court within the adjudication of this motion.

[91] To be clear, the only additional evidence where leave was given to the mother was for the filing of an affidavit from Dr. Rajarathna. All other evidence tendered by the mother after May 11, 2020 is not admitted.

Should the Court Suspend In-Person Access Between I.A. and His Father for Reasons Associated with COVID-19?

[92] The mother currently resides alone with I.A.

[93] The father currently resides alone with D.A. The father is caring for D.A. full-time because there are criminal court conditions that prevent contact between D.A. and the mother.

[94] Since mid-March 2020, the Province of Ontario has been under a state of emergency lockdown as a result of the COVID-19 pandemic. Individuals are required to practise physical distancing except with members of their own immediate household and to stay home, except for the purpose of buying essential basic or medical needs or work.

[95] Many physical workplaces are shut down unless exempted by virtue of being an essential service. Essential service workers continue to work, however, their work and daily workplace practices are modified to adhere to public health recommendations.

[96] The mother is a full time student. Her studies do not require her to leave her home for learning. The mother deposed that she also has asthma. The father states that he had never before heard that the mother had asthma. The mother filed no additional medical information that assisted the court in evaluating her particular health circumstances vis à vis the COVID-19 risks.

[97] The father works as an HVAC installation and repair service technician for one employer. This work is deemed an essential service.

[98] When the father works or otherwise cannot be home with her, he requires child care for D.A., who cannot be left alone because she is 7 years old.

[99] The father works approximately three to four times per week, when he gets called out on a service call. When this happens, he will get 24 hours notice from his employer, which allows him the time to arrange child care. On any given day that he might be called upon to work, he is only required to attend at one client home. The father filed his workplace's Protocol dated March 27, 2020 concerning safe practices for HVAC installers like the father, when attending at client, external service calls. I accept the father's evidence that he follows these safety protocols while working. The father, in his April 8, 2020 affidavit, described how he complies with all recommended health guidelines.

[100] The mother countered that the father has taken D.A. out to visit a friend and to a park contrary to public health recommendations. There are no further particulars with respect to these allegations and no further evidence that corroborates the assertions by the mother. The bald allegations are denied by that father, who says he has not facilitated any playdates nor taken D.A. to any parks since the provincial guidelines came into effect.

[101] The father relies upon two sets of friends to help him with child care when he must work: E. and P. T, a couple who in their early 60's, and M.K., a 75 year old woman.

[102] Both Mr. T. and Ms. K. swore affidavits both dated May 12, 2020.

[103] Ms. K. babysits D.A. at Ms. K.'s home usually three times per week for 3-4 hours each time. Ms. K. was employed as a lunch room supervisor and is currently not working as a result of COVID-19 shutdowns. She lives with her husband, also 75, and no one else. He is retired. Neither leave the home except for essentials.

[104] The mother, in her supplementary submissions, invited the court to disregard the affidavit of Ms. K. based upon her belief that the affidavit may have been altered due to differences in font between 2 paragraphs or improperly sworn. I place no weight upon these submissions in the face of an affidavit that, on its face, is commissioned by an officer of the court and absent any details, other than pure speculation, upon which her belief is anchored.

[105] The mother also asks the court to disregard Ms. K.'s evidence as the information contained within it, contradicts the information given to Ms. Kuiack when Ms. Kuiack interviewed Ms. K. for the purposes of the Report of the Children's Lawyer, as a collateral source of information. Having reviewed the information contained within the Report, flowing from the interview Ms. Kuiack had with Ms. K. on January 15, 2020 to the information sworn in her affidavit almost 4 months later on May 11, 2020, I find there to be no inconsistency and would call into question the veracity of the affidavit.

[106] Mr. and Mrs. T. babysit D.A. at the father's home 1-2 times per week for 2-4 hours (and rarely, up to 6 hours on occasion). Both are on social assistance and do not otherwise leave the home except for essentials. They live with their adult daughter, her husband and two children, a three year old and a baby. Their daughter is on maternity leave and her husband is working from home and none of these other individuals leave the home other than for essentials.

[107] I also do not find there to be any inconsistency with respect to the fact that there is no mention of babysitting when Ms. Kuiack interviewed Mr. T. on December 30, 2019. At that time, the father would have been seeing the children for short periods of time during the day and likely would not have required a babysitting support of his own.

[108] I am satisfied from the two affidavits that the babysitters and their immediate household family members are conducting themselves in accordance with public health recommendations meant to reduce the risk of contracting COVID-19.

[109] The evidence has not convinced me that the father has exhibited risky conduct that puts either himself or D.A. at unnecessary risk of contracting COVID-19.

[110] Whether or not I.A. has been "diagnosed with asthma", in my view, is not the focal point in this analysis. The medical evidence admitted in this motion satisfies me that I.A. has an underlying respiratory health condition. If I.A. contracts any type of respiratory illness, I accept – from his medical history, his past need for inhalers and the current medical advice of his primary care physician – that he is at an increased risk of complications should he develop COVID-19.

[111] Dr. Rajarathna deposes that it is reasonable to take additional precautions with individuals with pre-existing respiratory conditions, however, she remains silent and non-specific as to what those precautions ought to be.

[112] The mother urges me to suspend all direct in-person contact between I.A. and his father. The father urges me to set a schedule that mirrors the recommendations in the Report of the Children's Lawyer.

[113] The consideration of what is in I.A.'s overall best interests requires me, in making this decision, to look beyond the narrow focus of the increased risk to I.A.'s respiratory health.

[114] I must consider all the child's needs and circumstances in arriving at a conclusion that accords with this child's overall best interests in this scenario.

[115] The evidence has established that, despite his underlying respiratory condition, I.A.'s respiratory health is currently stable. He is not currently on inhalers and has not been on any since before he went to stay with his father on February 4, 2020. His previous respiratory symptoms were described by Dr. Rajarathna as having been "mild and adequately managed with the established use of inhalers."

[116] I take into consideration that, the existence of an underlying respiratory condition, was not significant enough of a concern for Dr. Rajarathna to warrant including it within the information she provided to Ms. Kuiack, for the purposes of the Report of the Children's Lawyer concerning I.A., during the collateral contact that occurred between them on January 20, 2020.[2]

[117] I.A. and his father, in the recent past, enjoyed a loving, affectionate and meaningful relationship. There appears to have been a sharp and sudden rupture in that relationship that coincided with his return to his mother's home.

[118] Presumptively, there is no stronger nor more important relationship than that of parent and child. The framework of most, if not all, of the provincial laws impacting children rest on this fundamental premise.

[119] The continuation of I.A.'s physical separation from his father is not healthy for the restoration of this vitally important relationship. It places I.A. at risk emotionally, both in the short term and potentially in the longer term, given the negative impact that I.A. has already experienced and is experiencing as a result of the parties' conflict.

[120] Also, there has been a separation between I.A. and his sibling D.A.. The two of them, having previously always resided together, have now, for two months, not had any direct access with each other.

[121] I agree with Justice Pazaratz who, in Ribeiro v. Wright, 2020 ONSC 1829, stated:

None of us know how long this crisis is going to last. In many respects we are going to have to put our lives "on hold" until COVID-19 is resolved. But children's lives – and vitally important family relationships – cannot be placed "on hold" indefinitely without risking serious emotional harm and upset. 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.

[122] Given the strength of the father's COVID-19 precautions, including the measures taken by D.A.'s babysitters and, balancing the increased risk associated with I.A.'s underlying respiratory condition with the deleterious effects of the continued distancing between I.A. and his father, I find that it is in I.A.'s best interests to resume direct contact with his father.

[123] Having decided that the mother's plan, that there be no access, is not an option that is in I.A.'s best interests, does it follow then, as the father's counsel suggested, that I must defer to the only other plan that has been proposed in this motion? The answer to that is no.

[124] The court is tasked with the determination of an access plan that is in the best interests of I.A., whether or not that plan was one that was proposed by one of the parties. S.24(2)(e) of the Children's Law Reform Act requires that the court consider the plans proposed by the parties.

[125] I have done so, and I find that neither option proposed by the parties is in the best interests of I.A.

[126] Temporary orders are holding orders determined on incomplete and evolving evidence. Temporary orders are not intended to be perfect. They promote some measure of interim fairness while matters progress to a final resolution or determination. At best, temporary orders create or maintain interim stability and fairness. P.W. v. P.T.W., 2017 ONSC 5593 and Hatuka v. Segal, 2017 ONSC 5623.

[127] The plan proposed by the father follows the recommendations of the Report of the Children's Lawyer. The framework of that plan appears to have developed based on circumstances that were very different when they were made, than now.

[128] The novel coronavirus, that causes COVID-19 infection, has very suddenly, and very quickly, inserted itself into societies across the globe, and imposed societal changes in a way none would have imagined.

[129] The evidence established that the schedule proposed by the father was developed during a time when school schedules, activity schedules, and work schedules demanded that I.A.'s parents collaborate with each other to ensure both children continued on with the routine to which they were accustomed.

[130] Prior to February 4, 2020, I.A. was having very frequent contact with his father, about 5 times a week.

[131] I take into consideration the principle that a child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[132] Now, the parents and children need to alter their conduct within society, and stay home as much as is reasonably possible. Less frequent access exchanges are preferable in the existing circumstances, to reduce the number of times I.A. needs to leave either of his two homes.

[133] Less frequent exchanges are preferable also to reduce the opportunity for conflict amongst the parties.

[134] In January of 2020, both parents were in agreement that it was appropriate for I.A. to spend overnights with his father and then, in fact, I.A. resided with the father for an entire month while the mother was addressing her needs following the laying of the criminal charge regarding D.A.

[135] I find that it is in the best interests of I.A. to spend three consecutive nights with the father followed by four consecutive nights with his mother, every week. This schedule will reduce the number of exchanges between the parties from multiple times per week to just two exchanges per week. This will also enable I.A., not only to spend a significant amount of time per week with his father, but also with his sister.

[136] The mother submitted that the exchanges ought not to take place at her home because of an incident that occurred on November 1, 2019 wherein she alleges the father was aggressive and had been banned from the premises by the landlord. The father denies such a ban is or ever was in place. The mother, in submissions, offered that the exchanges could take place at a public place or a police station. Also raised within submissions, was the potential that the mother could be seen to be in breach of her criminal undertaking if she conducted the exchanges and the father had to bring D.A. along with him.

[137] In the circumstances, the exchanges shall be outside of the home of the mother. The father is to provide transportation. I.A. is 11 years of age and can make his way out to the father's car without needing the mother or father to escort him. This plan will reduce I.A.'s presence in any public place, which would be higher risk for COVID-19 contaminants than the route between the mother's residence and the father's car.

[138] Provided that the mother takes every measure to remain inside her home during the access exchange, while I.A. heads out directly to the father's vehicle, and D.A. remains in the vehicle, I do not consider that to be a breach of the mother's undertaking as she is not "going to any place that D.A. is known to be." The father must bring D.A. along with him in the car because he cannot leave her alone in order to conduct the exchanges. This should not in any way be considered a breach of her undertaking.

[139] I see no reason why the parties cannot, with the assistance of their counsel, agree upon which nights will be the "father's nights" and which nights will be the "mother's nights" to accord with the needs of the family. However, failing agreement, the court will set a fixed schedule, which can be altered by the parties with written consent.

Order

[140] Accordingly, the temporary order of Justice Clay dated August 6, 2019 as it pertains to the determination of access by the father to I.A. is varied and replaced with the following, temporary order:

Access and Exchanges

1. The father shall have access to I.A. for three consecutive nights per week, commencing at 9 am on the morning of the first night until 9 am the morning following the third night.

2. The parties may, with the assistance of their counsel, agree upon which nights of the week will be for I.A. to be with his father.

3. However, failing agreement, the parties will default to the following schedule:

Commencing Thursday, May 21, 2020, and every Thursday thereafter until further order of the court, I.A. shall be with his father from Thursday at 9:00 am until Sunday morning at 9:00 am.

4. If parties have chosen different nights than above, they shall execute a consent with the assistance of their counsel, a copy of which is to be retained by each party, together with a copy of the court order.

5. Transportation for access is the responsibility of the father.

6. Access exchanges will take place outside the residence of the mother. The expectation will be that I.A. make his way between the mother's home and the father's car on his own, without the need to be escorted by either parent. Both parents are responsible to text each other in the moments prior to the exchange so that each parent knows that I.A. is on his way, to and from the house/to and from the car as the case may be.

7. It is the responsibility of both parents to ensure that the exchanges occur smoothly, safely and in a timely manner.

8. Should school resume, any exchange which occurs on a school day will take place at the school, with the parent who has I.A. the night before to drop him off at the start of the school day.

9. Parties are free to temporarily deviate from the terms of this court order on an ad hoc basis, as may be needed, provided that the decision to do so is on consent of the parties and reduced into written form.

COVID-19 Expectations

10. In their conduct following the terms of this order and otherwise, both parties must do whatever they can to ensure that neither of them, nor the children, contracts COVID-19. Every precautionary measure recommended by governments and health authorities in their municipalities as well as in Ontario and Canada, must be taken by both parties and, with their help, by their children. Neither party should do anything that will expose themselves or the children to an unnecessary, increased risk of contracting the virus.

Telephone/Video Contact

11. Each parent, while I.A. is with them, shall ensure that he does not go longer than 2 days without having some contact with the other parent. This requirement will be accomplished for I.A. by using telephone, Skype/FaceTime or other such electronic video or audio contact with the other parent to allow some form of remote interaction that will bridge the gap between access exchanges. The parents should schedule and designate a reasonable and specific date and time, in advance, when the contact will happen and both parents have the responsibility to ensure that both they and I.A. are available on the designated date and time.

Next Steps in the Proceeding

12. The case is currently scheduled for a settlement conference on August 4, 2020 with Justice Clay, having been administratively adjourned as a result of the court's restricted operations. Given the extent of my involvement with this family to date, I will take carriage of the case management of this file from this point forward.

13. I am not scheduled to preside on August 4, 2020. Therefore, the August 4, 2020 court is to be rescheduled by the trial coordinator after consulting each counsel's availability.

Peel CAS

14. The father's counsel is to ensure that the ongoing Peel CAS worker receives a copy of this endorsement.

Costs

15. Costs of this motion are reserved. The parties are strongly encouraged to resolve the issue of costs on this motion with the assistance of their counsel. If they are unable to do so, the court will provide directions to counsel on the next appearance regarding future written cost submissions.

Preparation of Order

16. Father's counsel will take out this order.

Release of Endorsement

[141] This decision will be released, by email, to counsel of record by the judicial secretary.

Justice M. Cheung

[1] The mother filed other materials for which leave was not granted. I have not considered these materials.

[2] Ms. Kuiack wrote of the information she obtained from Dr. Rajarathna, regarding I.A., on January 20, 2020: "Dr. Rajarathna has been I.A.'s physician since July 31, 2019. Dr. Rajarathna has seen I.A. a total of 8 times and his last appointment was January 2, 2020. I.A. has no general medical conditions or concerns. I.A. has expressed some concerns about what is happening at home. Dr. Rajarathna has stated that he feels the parents should avoid passing messages to one another through the children."