Court File and Parties

Ontario Court of Justice

Date: July 3, 2020

Court File No.: Toronto DFO-18-16053

Between:

L.B. Applicant mother

— and —

I.L. Respondent father

Ruling on Covid-19 Motion released July 3, 2020

Counsel:

• Jennifer Ryan, Counsel for the applicant mother
• Alison Southern, Counsel for the respondent father

Before: O'Connell J.

Introduction

[1] The court granted the mother leave to bring an urgent motion for the enforcement of their parenting agreement regarding their daughter, age 9, after the father kept the child in his care on two separate occasions for significant periods of time. Both occasions were due to pandemic related issues.

[2] The parties settled all of the issues on the eve of the motion, except one: how to interpret and apply government health protocols during the pandemic.

[3] The hearing was conducted by telephone conference in accordance with the Court's COVID-19 Practice Directive. The parents and counsel participated from their respective homes or offices.

[4] The child was in the father's care at the time the hearing was argued. Before proceeding, upon being asked, the father confirmed that the child was in another room in the home watching a film with head phones on, and that he was in a separate room with the door closed. He advised the court that the child was not present, nor could she hear what was happening during the hearing.

[5] The parties agreed that the child would be returned to the mother's care on Saturday May 16, 2020 and that the mother would have make-up time with the child for a period of seventeen days. The parties agreed to determine how the make-up time would be distributed at mediation, or failing agreement, at the mother's discretion.

[6] The issue that could not be resolved was the parties' differing interpretations of COVID-19 protocols.

The Father's Position

[7] In his cross-motion, the father seeks an order that both parties comply with the following order during the pandemic:

For as long as there are advisories and protocols in place regarding the COVID-19 pandemic, the parties shall both:

a) Explain to the child that her parents have spoken, and tell her that they have agreed that they will both make sure that they keep up to date on all of the rules and work together to share the same rules in each of their homes so that they can keep everyone inside and outside the home as safe as possible;

b) Keep themselves informed as to, and follow, the up-to-date recommendations, bylaws and laws through the health departments of the City of Toronto, Province of Ontario, and federal government with respect to COVID-19, as posted on the City of Toronto, Province of Ontario and federal government websites;

c) Promptly (within 12 hours prior or prior to a transition—whichever is shorter) communicate to the other party any instances of illness or exposure in their households, and in the mother's case, any instances of illness or exposure at W.S.'s household (the father of the mother's younger daughter).

[8] It is the father's position that the mother does not follow the government health protocols and directives with respect to COVID-19 seriously or fails to understand them. He submits that he has followed government protocols carefully, and responsibly. When it was necessary to self-isolate with the child as a result of someone else in their household having COVID-like symptoms, he did so on two separate occasions. He states that he did this upon the advice of Telehealth and a family doctor.

[9] According to the father, the mother's actions during the pandemic have created unnecessary risk for their daughter, as well as anxiety and fear in her. Their daughter is old enough to understand the pandemic and the severity of the virus.

The Mother's Position

[10] The mother agrees with sub-paragraphs (a) and (b) of the father's position above and that these provisions should be incorporated into a temporary order, but she does not agree with sub-paragraph (c). The mother instead proposes that sub-paragraph (c) be changed as follows:

In the event that the parties disagree as to how a recommendation, by-law and/or law is to be interpreted, they shall continue the regular schedule until such time as the Court orders otherwise, i.e., there shall be no unilateral changes to [the child's] schedule:

a) The exception to this is where anyone other than [the child] who lives in the home develops symptoms of COVID-19 (or has verifiable exposure) while the child is there, in which case the other parent must be immediately notified, and arrangements must be made for the child to be delivered to that other parent until the symptomatic parent has recovered;

b) The symptomatic parent shall make best efforts to be tested (once same is available).

c) The parents shall keep each other up-to-date as to any changes in the health of anyone in their households that are potentially related to COVID-19 (the mother shall do the same as regards to W.S., the father of her other child.)

[11] It is the mother's position that the father is using the pandemic in bad faith to manipulate the parties' parenting schedule. Since the state of emergency was declared, the father kept the child on two separate occasions for periods of up to fourteen days to self-isolate for what he states are pandemic-related issues.

[12] According to the mother, the father is manufacturing reasons to keep the child away from her in order to move the child to a 'week-about' parenting schedule, which is what the father had been seeking previous to the commencement of the pandemic.

[13] The mother further submits that the father's actions have increased the child's anxiety by keeping her away from the mother. She asserts that any potential exposure to the COVID-19 virus while self-isolating in the mother's home (as opposed to the father's home), is very small compared to the very significant risk to the child's mental health and anxiety through separation from her.

Brief Background

[14] The parties are the biological parents of J. B. L., born […2010]. J. has recently turned 10 years old.

[15] The parties were in a relationship and lived together from 2009 and 2012. Upon separation in 2012, J. lived with both of them on an equal time basis. J. was two years old when the parties separated.

[16] The parties entered into a parenting agreement in 2015. They both had lawyers. The agreement provides for joint custody and equal parenting time. As J. became older, the parties went to a mediator and agreed to what has been described as a "2/2/5/5/" parenting schedule.

[17] The mother has one other child, age two years old, from a subsequent relationship, although she is now separated from the father of that child. The child's primary residence remains with the mother and the father has regular access.

[18] J. is the only child of the father in this case. The father has re-partnered. He and his partner live together. The father's partner is employed as caregiver for a family.

Summary of Relevant Evidence

[19] On March 22, 2020, the day before J. was to return to the mother's care under the parties' parenting schedule, the father wrote to the mother by email to advise that his partner had "just been informed that a caregiver of a child that [his partner] looks after is in self-isolation due to their relative having tested positive."

[20] The mother deposed that she "understood immediately that [the father] was trying to set up a situation where he would be able to keep J. with him". According to the mother, she sensed that the father was trying to manufacture a reason to keep J. away from her because he had previously expressed that he could manage J.'s online education better than she could and he wanted to move to a week-about schedule.

[21] However, the next morning, O., the mother's younger child living with her, showed symptoms of being ill. The mother agreed to let the father keep J. with him until April 5th, at which time O.'s self-isolation period would end. According to the mother, O.'s symptoms were fine in a couple of days, but the mother agreed that J. could remain with the father as agreed.

[22] On April 3, 2020, shortly before J. was to be returned to the mother, the father retained a lawyer who wrote to her advising that the father would not be returning the child to the mother on April 5th due to his concerns that the mother was not following pandemic protocols and that "until you demonstrate that it is safe for J. to have in-person parenting time with you, J. will remain in Mr. L.'s care."

[23] It is the father's evidence that he was initially agreeable to returning J. on April 6, 2020, "until the mother demanded [J.'s] earlier return" (less than the fourteen day period of self-isolation). The father deposes that he became increasingly concerned about the mother's "knowledge of and compliance with COVID-19 protocols."

[24] The father states that his concern was increased when he saw text messages between J. and the mother in which the mother advised J. that when she returned to her care, they would have her grandmother over for a visit.

[25] The father further states that the mother was allowing O., her other child, to go outside despite having COVID-like symptoms and being required to self-isolate. Further, O.'s father continued to have in-person access to O. during this time.

[26] The father states that given his concern about the mother's lack of knowledge and compliance with COVID-19 protocols, he wanted the mother to confirm her knowledge and enter into a "detailed agreement" prior to returning J. to the mother's care. He wanted to ensure that J. and the other members of her extended household would remain safe.

[27] Following receipt of the letter from father's counsel, the mother retained counsel. Between April 6 and April 11, 2020, there was a voluminous exchange of email correspondence between counsel (approximately forty pages), which will not be repeated here, although some relevant points are noted below.

[28] The mother acknowledged her error in telling J. that she would be able to visit with her grandmother and that the grandmother was coming for a visit following J.'s return. She agreed to tell J. that this was a mistake, given the conflicting messages that J. was getting about the pandemic in her different homes, causing J. anxiety.

[29] The mother also advised through counsel that the father of her second child had suspended his in-person access initially during the pandemic, but that he later returned to outdoor parenting time with O. in the community, following social distancing protocols.

[30] On April 7, 2020, the mother further confirmed in writing that she was informed about municipal, provincial and federal by laws and directives. She provided the reference links for this information and she confirmed that she would follow them.

[31] The father, through counsel, continued to request further conditions prior to returning J. to the mother's care.

[32] On April 10, 2020, the father sent a list of conditions totaling approximately five and one-half pages prior to J.'s return to the mother's care. It included more than thirty conditions, including "refrain from public transit, taxis or ride shares"; "refrain from high risk activities"; "leave the home to get essential supplies at most once per week"; "leave the property for exercise at most once per day"; "refrain from visiting anywhere such as parks, benches, boardwalks, hiking trails, or other public places where people gather"; "wear cloth masks when going outside", and several other conditions.

[33] The mother refused this list of conditions and threatened litigation. The parties were able to reach an agreement and on April 12, 2020, the child returned to the mother's care, after having missed eleven days with her.

[34] It is the father's evidence that he continued to have serious concerns about the mother's compliance with the pandemic but recognized that it was important for J. to see her mother. As well, the parties agreed to attend virtual mediation to discuss additional and more thorough terms. The parties were unable to reach an agreement in mediation.

[35] J. remained with the mother before returning to the father's care in late April. The father continued to have concerns about the mother's compliance with health protocols and their counsel continued to exchange correspondence.

[36] On May 2, 2020, two days before J. was due to return to her mother's care, the father notified the mother for a second time that his partner had on that day shown symptoms of Covid-19. She had taken the Ontario self-assessment tool and had to self-isolate for fourteen days. The father advised that, pursuant to City of Toronto guidelines, he and the child also have to self-isolate for fourteen days.

[37] The father also stated the following in his email: "This will inevitably be difficult for J., as the last period of required self-isolation also landed at my home, however, I have to comply with our agreement to follow municipal, provincial and federal guidelines for COVID-19".

[38] The mother responded the same day and stated: "Return J. to me immediately before [the father's partner] gets more sick." According to the mother, she did not consider it to be a big risk to have J. in her care as she did not believe that the father was being truthful.

[39] The mother asked for supporting medical documentation. The father advised that his partner does not have a family doctor, however, he consulted with his family doctor, and explained his partner's self-assessment. According to the father's family doctor, based on the symptoms described, it was correct that the father's partner isolate from the father and J. and that J. should also be isolated from her mother and her younger sister in the mother's home. This is the safest option to reduce the spread of the virus.

[40] The father advised that his partner's symptoms were nausea, abdominal pain, and severe headache. The father did not provide an affidavit from his partner or any other medical documentation.

[41] The mother commenced these proceedings after repeatedly asking for J. to be returned to her home during the period of self-isolation in the father's home.

[42] After this motion was commenced, and the fourteen day period of self-isolation was completed, J. returned to her mother's home. The father agreed that the mother should have a seventeen day period of make-up parenting time.

[43] However, the parties continue to disagree about government protocols. It is the mother's position that should any member of the father's household get sick again or experience COVID-like symptoms, then the child should be immediately returned to her care. She believes that the father is using the pandemic as a cover and that he "will do this until the pandemic ends."

[44] It is the father's position that when family members in the same household get sick or experience COVID-like symptoms, then all members of that household should shelter in place for fourteen days to avoid the spread of potential exposure, in accordance with medical advice and the Ontario government protocol.

The Law and Governing Principles

The Best Interests of the Child

[45] The issue in this case is governed by Ontario's Children's Law Reform Act, R.S.O., 1990, c. C.12 ("the CLRA") and the Family Law Rules, O. Reg. 114/99, as amended.

[46] The order that I make must be determined in accordance with the best interests of the child. Sub-sections 24(1) and 24(2) of the Children's Law Reform Act set out the "best interests" test and the factors that a court must consider when determining what is in a child's best interests. I have considered all of the relevant factors.

[47] The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), at paragraph 74; Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) at paragraphs 50 and 54.

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

[49] A child should have maximum contact with both parents so long as it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).

COVID-19 Family Law Cases

[50] I must also consider the body of case law that has developed in family law as a result of the pandemic.

[51] The COVID-19 pandemic is unprecedented. As Justice W.L. MacPherson stated in Douglas v. Douglas, "There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child's physical well-being, but also their emotional wellbeing."

[52] There have been over one hundred reported custody and access cases arising as a result of concerns about a child's safety when exercising access or navigating between two homes during the pandemic.

[53] However, some important general legal principles have emerged.

[54] In Ribeiro v. Wright, 2020 ONSC 1829, one of the leading cases that first emerged during the pandemic and often cited, Justice Alex Pazaratz set out the following considerations when considering whether face to face contact with a parent should be suspended or parenting time altered during the pandemic:

1. In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

2. 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.

3. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a fourteen day period as a result of recent travel; personal illness; or exposure to illness).

4. In some cases, a parent's lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child's household) to any COVID-19 risk.

5. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

6. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

7. 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.

8. 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.

[55] The rapidly developing body of COVID-19 case law in family law custody and access cases is clear. There is a presumption that all custody and access orders should be respected and complied with. Ribeiro v. Wright, 2020 ONSC 1829, per Justice Alex Pazaratz.

[56] The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of conduct by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.

[57] The same must be said for parenting agreements, as in the case before me.

[58] A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their child's well-being, or the health of a person in the home; then the parent must provide specific evidence of this and bring a motion to change the order. See: Almadi v. Kalashi, 2020 ONSC 2047.

[59] In determining a suspension of parenting time, the court must assess the medical vulnerabilities of a child in the home, the ability of the parents to follow COVID health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213.

[60] In Lee v. Lee, 2020 ONSC 2044, the court stated that in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.

[61] Medical evidence is important on these COVID-19 motions. In C.L.B. v. A.J.N., 2020 ONCJ 213 at paragraph 31, Justice Stanley Sherr stated that if someone is seeking to suspend a person's face-to-face contact with a child due to the child's medical vulnerability, a medical report should be provided setting out the child's medical condition, any increased vulnerability the child has with respect to the COVID-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.

[62] In my view, this same principle should also be applied if a parent is seeking to terminate parenting time if other members of their household have tested positive or has developed COVID like symptoms.

Analysis

[63] These are extraordinary times. Parents and guardians are understandably very anxious and fearful about COVID-19 and its impact on their children. Further, government protocols and directives can change frequently, sometimes daily, and can be difficult and confusing for parents to follow.

[64] Very unfortunately, these parents do not trust each other at all. They also appear to have very different views about government health protocols during this pandemic and the level of compliance necessary to follow them.

[65] However, in reviewing the evidentiary record, it is clear that both of these parents love their daughter very much and that they are both loving, caring and responsible parents who are concerned about the pandemic's impact on their daughter, and in the mother's case, both of her children.

[66] In Johnson v. Johnson, 2020 ONSC 2896, the court set out that once it finds that both parents fall into the category of "loving, caring, responsible, safety-conscious parents", it is unnecessary – and inappropriate – for judges to conduct a microscopic analysis of every single decision each parent makes during their time with a child as:

a. During COVID-19, daily life for separated parents has become exponentially more complicated, entailing many new responsibilities and countless judgment calls.

b. Parents have to think about and agonize over activities and interactions previously regarded as routine and benign.

c. They have to stop doing certain things.

d. They have to do other things differently and more safely.

e. Parents have to provide children with as normal a life as possible in abnormal times.

f. If parenting standards demonstrably fall below a certain threshold, the court will have no hesitation to intervene.

g. But once parental insight, trustworthiness and devotion have been firmly established, we need to step back a bit and let parents make some of the tough day-to-day decisions on their own.

[67] On the evidentiary record before me, it was very difficult to determine whether the father was deliberately manufacturing reasons to keep the child away from her mother or whether he was vigilantly following COVID-19 protocols (or being over-vigilant).

[68] The mother's counsel described the father's adherence to government protocols as one of "extreme vigilance" as opposed to "informed compliance."

[69] The father's partner is a caregiver in an essential service and therefore at a higher risk of exposure. This may be the explanation for the father's extra degree of vigilance.

[70] However, the father's insistence on a detailed list of over thirty conditions before the child could return to her mother's care following the first period of self-isolation (including no public transit or hiking) was unreasonable and excessive. His position appeared to excessively vigilant, rigid and controlling.

[71] The father should not have overheld the child until the mother agreed to comply with these conditions. The court was very concerned that the father would not agree to return the child until April 11, 2020, a period of five days after the first period of self-isolation ended.

[72] Having said that, the court was also concerned about the mother's lack of understanding of government protocols. The mother was mistaken when she told the child that her grandmother would come to visit them after the child returned home. This was clearly not in compliance with the physical and social distancing measures at the time.

[73] It is not disputed that this caused J. a lot of anxiety. J. was almost 10 years old at the time and very much aware of the pandemic and the protocols in place, not to mention the different practices in both parents' households. J. was missing her mother but at the same time she expressed anxiety and fear that her grandmother would get sick if she came to their home.

[74] To her credit, the mother acknowledged her mistake. She corrected her mistake with the child. She assured the child and the father that she would comply with government protocols.

[75] Nevertheless, the mother's position that the child should be immediately returned to her home if any member of the father's home experiences COVID-like symptoms is also not a correct interpretation of government health directives.

[76] When family members in the same household get sick or experience COVID-like symptoms, then all members of that household should shelter in place for fourteen days to avoid the spread of the virus or potentially expose other people outside the home. Otherwise, the mother and her other child, (J.'s half-sister), could be potentially exposed and get sick.

[77] The mother states that the risk of potential exposure in these circumstances is small, and the risk of J.'s separation from her is far greater, given J.'s documented anxiety.

[78] The court respectfully disagrees. Government protocols must be followed. The court understands the mother's concern, given her belief that the father may once again refuse to return the child due to another period of "self-isolation" which she believes has been manufactured.

[79] To alleviate this concern, in the event that this occurs again, the father must provide supporting medical evidence and affidavit evidence from his partner. Indeed, the father should have provided direct evidence from his partner in the form of an affidavit as well as supporting medical evidence in the form of a doctor's letter or report for both periods of self-isolation that occurred.

[80] To his credit, the father did agree to seventeen days of make-up parenting time after the second period of self-isolation. Make-up parenting time will occur should this happen again.

[81] The court is aware that public health directives are frequently changing, which is no doubt confusing. The parties must make every effort to follow them consistently.

[82] Rather than choose either of the parties' proposed Covid clauses, (with the exception to what they have agreed upon), the court will adopt the approach taken by Justice Sherr in C.L.B. v. A.J.N., 2020 ONCJ 213, and Justice Kiteley in McArdle v. Budden, 2020 ONSC 2146. Instead of setting out specific health terms that the parties must follow, the parties will be required to follow public health directives issued by the governments of Canada, Ontario and the City of Toronto.

Conclusion and Order

[83] Therefore, for the above reasons, the court makes the following temporary order:

1. For as long as there are advisories and protocols in place regarding the COVID-19 pandemic, the parties shall both:

a. Explain to the child that her parents have spoken, and tell her that they have agreed that they will both make sure that they keep up to date on all of the rules and work together to share the same rules in each of their homes so that they can keep everyone inside and outside the home as safe as possible;

b. Keep themselves informed as to, and follow, the up-to-date recommendations, bylaws and laws through the health departments of the City of Toronto, Province of Ontario, and federal government with respect to COVID-19, as posted on the City of Toronto, Province of Ontario and federal government websites;

c. The parties must respect physical distancing measures. They must do whatever they can to ensure that neither of them nor the child contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by the child. Neither party shall do anything that will expose themselves or the child to an increased risk of contracting the virus.

d. Both parties will follow government orders and requirements as set out and as updated here:

• https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html
• https://www.ontario.ca/page/2019-novel-coronavirus#section-7
• https://www.toronto.ca/home/covid-19/

e. The parties are encouraged to work together to help the child navigate through this public health crisis. She needs to see her parents cooperating and putting her interests first. She should not be put in the middle of their issues with one another, particularly in this emotionally difficult time for her.

f. If either party or a member of his or her household is experiencing COVID like symptoms, then he or she shall immediately advise the other party and shall provide supporting medical evidence, in writing, signed and dated, from a doctor, confirming the symptoms or illness as well as an affidavit from the adult non-party experiencing the symptoms.

g. The parent self-isolating will provide make-up parenting time to the other parent.

[84] If either party is seeking costs of this motion, then this can be addressed at the return of the case conference before me on July 21, 2020 at 10:00 AM.

[85] In the circumstances of the COVID-19 pandemic, this endorsement is 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, this endorsement is an effective and binding Order from the time of release.

[86] I wish to thank counsel for their helpful submissions.

Released: July 3, 2020

Justice Sheilagh O'Connell

Ruling sent to both counsel by PDF attachment through email.

Footnotes

[1] Due to the COVID-19 global crisis, the Ontario Court of Justice issued a Practice Directive that all family court matters shall be adjourned until July 6, 2020, with exceptions for certain urgent matters as specified in the Court's Practice Directive.

[2] March 20, 2020, 684/19 Ottawa [unreported].

[3] The case law has developed somewhat differently in child protection cases under the Child, Youth and Family Services Act ("CYFSA").

[4] Both parents have stated that J. suffers from documented anxiety.