Court File and Parties

Date: June 18, 2020 Court File Number: 135/19 Ontario Court of Justice Orangeville

Between: Courtney Barbara Russell, Applicant

and

Alexandre Thomas Daoust, Respondent

Before: Justice B.E. Pugsley

Heard via teleconference: June 17th, 2020

Released: June 18th, 2020

Attendances

• Applicant and counsel Ms. J. Birchall
• Respondent's counsel Ms. R. Deswal

Endorsement

Background and Family Circumstances

[1] The parties reside in Dufferin County. They have two little girls: Laura, now four, and Lyla now five.

[2] The parties separated a year and a half ago. Since then their relationship has been somewhat tortuous. Neither party is blameless in that result.

[3] For the first eleven months after separation they worked hard with the help of counsel to order their relationship by way of a semi-formal agreement. For some reason however counsel have decided that the lengthy and somewhat aggressive correspondence related to reaching that agreement would be best attached to an affidavit here. I know of no basis for believing that settlement discussions between counsel leading to an agreement should form evidence in a contested motion, nor is it in any way of assistance to this court.

[4] That agreement inter alia included terms of access by the Respondent under a shared custodial arrangement, and that the Respondent have periodic screenings for illicit drug consumption.

Criminal Charges and Initial Court Orders

[5] On or about November 27th, 2019, the Respondent was charged with three counts of threatening involving the Applicant and her parents. He was held for bail and was released on terms including non-communication, on November 28th, 2019.

[6] A few days later the Applicant started this matter by an Application dated December 2nd, 2019. At the same time, she asked for an order without notice to the Respondent. The court ordered on December 3rd, 2019, that the Applicant have custody, that the Respondent have access, and that access be arranged between the parties or, if the parties were unable to arrange access, then at the local supervised visit centre as a default. The order expressly stated that it was made to lend necessary stability to a situation that had the potential to become unstable to the detriment of the children.

[7] The December 11th, 2019, ex parte order came before me for review. Before that court date the parties, again with the help of their respective counsel signed a consent to an interim without prejudice order, to be reviewed on January 29th, 2020, allowing the start up of access by the Respondent to his girls. The mechanics of access were agreed to as well as restrictions on where and how the access would happen. The Respondent agreed to consume no drugs or alcohol during and before access, and to provide copies of his drug test results. The December 3rd, 2019, order regarding custody was not varied. The consent was made into an order on December 11th, 2019.

[8] The Respondent's Answer, and Claim by Respondent, was signed on December 31st, 2019. The Respondent included a claim for joint custody, spousal support and several matters outside the jurisdiction of this court, including property issues and a divorce.

[9] On January 29th, 2020, when the motion review was to have come on for hearing, the matter was adjourned to March 18th, 2020 for a review of the ex parte order as amended by the parties' consent.

Further Criminal Charges and COVID-19 Disruption

[10] On or about February 17th, 2020, the Respondent was arrested in Toronto and charged with breach of recognisance, possession of a prohibited weapon, and improper handling of ammunition. The Applicant moved without notice for an order suspending the Respondent's access. On February 19th, 2020, that order was refused by Justice Parent at Brampton.

[11] On March 18th, 2020, the courts were engaged in the start of a lengthy period of time when the usual procedures of the court were severely disrupted by the COVID-19 pandemic. Presumptively matters were adjourned. This matter was adjourned to June 3rd, 2020, for a motion review of the December 3rd, 2020, ex parte order.

[12] With the advent of the COVID-19 crisis the Applicant immediately resisted a continuation of face to face access between the children and the Respondent. Laura has a genetic condition which can cause potential lung conditions. As such the Applicant sought advice from her doctor about how to protect Laura. He recommended social distancing, and later, enhanced distancing pending public health clearance. The Applicant asked the Respondent to forgo access and for two visits he agreed to skip his access. After that he took the view that the children had isolated long enough and that access on a regular face to face basis ought to immediately recommence.

[13] The Applicant resisted a return to face to face access. The Respondent then took the position that the Applicant was refusing to follow the consent court order and had no right to do so. She was deliberately acting to stop him from seeing the children.

Chambers Motion and Adjournments

[14] On April 9th, 2020, the Respondent filed a motion in chambers seeking to have this matter transferred to the Superior Court of Justice at Orangeville to permit litigation involving the sale of a former home, and that this court grant the Respondent leave to move urgently before the SCJ regarding access which had been curtailed by the Applicant purporting to be because of the COVID-19 pandemic. The Applicant had allegedly unfairly withheld access based upon her assertion that the child Laura was under enhanced risk of danger from the COVID-19 virus due to her genetic disorder known as Alpha-1 Antitrypsin Deficiency ("AAT Deficiency" also called "Alpha-1").

[15] The chambers motion was dismissed as (a) disclosing no urgency to transfer to the SCJ, and (b), being beyond this court's jurisdiction. The parties were advised that Laura's condition required that access be approached with caution.

[16] On June 3rd, 2020, the motion review was adjourned on consent to June 17th, 2020.

[17] The Applicant brought on a second motion returnable on June 17th, 2020, seeking a continuation of the current routine of FaceTime access pending the resolution of the current COVID-19 threat. The motion is based upon the enhanced risk of harm to Laura given her genetic disposition.

[18] The motion review and the new motion were argued before me via teleconference on June 17th, 2020, together.

Evidentiary Issues

[19] Between the parties since December 2019, they have filed the following material: Applicant's affidavits: 7; Respondent's affidavits: 4; Respondent's mother: 1; Respondent's lawyer's assistant: 2; Applicant's friend: 1. Fifteen affidavits in all. Many affidavits with exhibits attached up to the letter "R". Attached self serving lawyer letters from Respondent's counsel to the Applicant's counsel and others: too many to credit.

[20] Value to the court: limited.

[21] I ignore as improper hearsay all statements attributed to Sgt. Phillips with regard to police suspicions about the Respondent and they have no place in a sworn affidavit before this court, let alone being repeated twice in different affidavits.

Key Findings of Fact

[22] From the morass of material placed before the court a limited number of facts stand out. First, the parties were well served by their decision to stop living together; second, they have two apparently well-adjusted little girls who are adored by all and who benefit from seeing their dad regularly.

[23] Third: Laura has a serious genetic condition (AAT Disorder or Alpha-1) that the only medical evidence before me suggests would make her exposure to the COVID-19 virus potentially very harmful. This genetic condition can attack her lungs and liver and a COVID-19 exposure could cause severe difficulty in breathing.

[24] There is evidence here to suggest that she is one of those persons in the community whose medical condition places her at a high risk of harm if she contracts the virus. All that the Respondent can do is point to the "generic" nature of one of the child's doctor's reports. That report was followed up by a more specific report and later by more information from those familiar with Alpha-1 and COVID. The Respondent himself provides no medical evidence.

[25] The Applicant is practicing an enhanced level of social distancing of both children to do her best to protect Laura. Exposure to a single household at this time has been recommended.

[26] The Respondent and his mother advise that they too are ready to, and already, practice social distancing, will be tested for COVID-19, and that there is no risk of any harm to Laura if the girls were in the Respondent's home for the regular access the parties agreed to in December.

Analysis of Respondent's Position

[27] This is undermined by the Respondent's express and implied views that the Applicant has concocted this higher risk to deliberately place a wedge between him and his children. June 7th, 2020, affidavit, para 14: "I have asserted since separation that Courtney has used the children as a pawn and has taken all efforts to marginalize my relationship with the children in her attempts to alienate me from the children's' lives. I reasonably believe that she is currently using the COVID-19 pandemic as a reason to keep me from the children." (emphasis added).

[28] There is no evidence to support this position, rather the opposite: the parties together arranged and implemented access that, but for the COVID-19 crisis, would have continued. It will, after the COVID-19 crisis, continue again.

[29] This statement by the Respondent in and of itself undermines the Respondent's stated position that he can protect Laura, suggesting this question: how can he protect Laura when he discounts the very existence of her state of higher vulnerability as a pretext created by the Applicant?

[30] The Respondent's suspicion, supported by those who will supervise his access, detracts from his expressed statement that he can care for the girls as well as anyone. This too is not supported by the record before me at this time.

[31] The Respondent distrusts everything that the Applicant says or does, suggesting that her concerns about Laura are simply not accepted by him whatever he says to the contrary.

Respondent's Circumstances and Criminal Charges

[32] The Respondent has much on his plate right now: the continued stresses of the COVID-19 crisis, mental health treatment, trying to kick a pervasive long-term drug dependency, a return to work, and two sets of serious criminal charges incurred since the fall.

[33] I do not agree that a charge of threatening to kill the mother and grandparents of his children "has nothing to do with the children".

[34] While at large on bail he has been charged with serious weapons related charges and released on bail again, this time with sureties and a curfew. This too, effects the children as he has fallen afoul of the law again while engaged in the middle of this access issue at a time when he had to have known that his activities would be placed before this court for scrutiny.

[35] The Respondent has the right of all defendants to be considered innocent until proven guilty on the criminal standard of proof in connection with the charges he is facing. This does not mean however that a civil court must ignore the existence of those outstanding allegations where the best interests of the children are engaged and where future proof on the civil standard might be engaged. To charge the Respondent police had to have had reasonable and probable grounds to arrest him. Two bail courts have heard the allegations and lately determined serious terms of release on surety bail. It is not in any way to suggest that he is guilty of anything but rather to note that at a time when he might have been expected to be squeaky clean for his girls, he has found himself in the criminal court again.

Medical Evidence and Risk Assessment

[36] Both parties agree that Laura is at an enhanced risk of serious harm if she contracts the COVID-19 virus. The last best medical opinion specific to Laura is that at this point a single residence is safest for her. Like anything else in life, risk of harm is relative and there is no perfect protection of any child. Here however we are not discussing an unending block to physical access between the girls and their dad but rather a pause in face to face contact and a continuation of frequent virtual contact.

[37] The Applicant in submission suggests that the proper time to reconnect face to face access is when this area enters "Phase Three" of the province's COVID-19 recovery strategy. Now we are in Phase Two here in Dufferin County. The authorities are continuing to monitor the progress of the area's response to the efforts to stop the transmission of the virus in the community. Phase three could be weeks or months away. The Applicant's position recognises the value to the girls of physical contact with their dad and his parents. Now that this motion has taken place it may be that the parties will relax their mutual distrust and focus on the girls together.

Drug Testing and Other Restrictions

[38] I will not address the issues raised by the Respondent for a modification of the other restrictions he agreed to on December 11th, 2019. It is too early to do so. The Respondent refers to "slips" with regard to his use of drugs – the latest one only in February. Realistically beating a severe drug problem is not a cut and dried one-off process. It is rather a series of starts and stops and fall backs. The Respondent appears to have made a start, but I cannot give much credence to a report on his progress based upon telephone contact and self-reporting. This is not the Respondent's fault in any way, and I hope he is doing very well indeed, but rather is another side effect of the current global pandemic.

[39] The Respondent has two excellent reasons to beat his severe drug issues: Laura and Lyla.

[40] There is no basis on this record to require the Applicant to undergo drug tests: these were never an issue until this motion review. The Respondent's blaming the Applicant for his drug use is avoidance of responsibility by him. This request is a tit for tat suggestion by the Respondent that is petty and undermines his own position.

[41] The parties use the word "toxic" multiple times in their respective material to describe the relationship with the other. This is no foundation upon which to build a shared custody relationship, at least on an interim basis.

Decision and Virtual Access

[42] Boiled down, this motion is about keeping Laura safe. I am satisfied that for now the best way to accomplish that is to continue to have regular electronic visits.

[43] There is no reason for the Applicant to be lurking about off screen during these visits – she can be nearby, but it is not a healthy message to the girls to suggest that their father can't be trusted to visit with them without their mother being present. Nor was she present when regular access took place before COVID-19. The Respondent's mother is a trusted resource to keep the parties from raising adult issues when the children just want to visit dad.

[44] The matter was adjourned To Be Spoken To on July 15th, 2020 at 10:00 am. By then we will know more about how the reopening process is coming. To be clear, the girls will not be waiting until there is a COVID-19 vaccine available to all: access should be expected to be relaxed again when the measures reasonably expected of the parties will adequately protect Laura. This may well coincide with Stage Three or may take place earlier as the facts warrant.

Costs

[45] Neither party referenced any position on costs, nor whether there were any outstanding offers to settle. If costs are sought and are not settled between the parties, submissions may be made through electronic filing at Orangeville on the following basis: the Applicant within ten days of the release of this order; the Respondent five days after receiving the Applicant's submissions; brief reply if required within five days after receiving the Respondent's submissions. Costs submissions will not exceed two double spaced A2 size pages, exclusive of bill of costs. I will stop reading at the end of the second page.

Order

[46] I therefore make the following temporary order, not on consent:

1. Until further order of the court, or the written agreement of the parties, face to face physical access by the Respondent to the children of the parties Lyla Mae Daoust (F)(DOB: […], 2015) and Laura Jean Daoust (F)(DOB: […], 2016) is temporarily suspended and replaced by virtual video access on the schedule currently enjoyed by the children. Added or replacement video access may be arranged between the parties with the assistance of counsel or an agreed upon third party, and on written agreement may be supplemented or replaced from time to time by telephone access.

2. The parties will update the court on the progress of the COVID-19 reopening plans and their plans to reinstate regular physical access by brief memo filed on the return of this matter on July 15th, 2020 at 10:00 am to be spoken to.

3. The existing order made on December 3rd, 2019, and amended on consent on December 11th, 2019, continues except as set out above.

4. Access established above may be varied by the written consent of the parties through counsel.

5. If not settled, the issue of costs may be addressed in the manner set out above.

Justice B. E. Pugsley