Court File and Parties

Ontario Court of Justice

Date: August 14, 2020

Court File No.: Brantford F 198/19

Between:

Ryan Dubay Applicant

— AND —

Sherry Borgford Respondent

Before: Justice A.D. Hilliard

Heard on: August 10, 2020

Reasons for Judgment released on: August 13, 2020

Counsel:

• A. Doxtdator, for the applicant(s)
• R. Sager, for the respondent(s)

Judgment

Hilliard J.:

Overview

[1] This is a motion brought by the Respondent mother for equal parenting time with the subject child, Leo Mason Borgford-Dubay, born […], 2018.

[2] The Applicant also brought a motion returnable the same day, requesting that the Respondent mother pay child support and seeking an order that Leo's identification documents, specifically his birth certificate and health card, be provided to the Applicant father by the Respondent mother.

[3] For the following reasons the motion requesting parenting time by the Respondent mother is granted in part. The motion by the Applicant father requesting child support is dismissed. The request for Ms Borgford to provide Leo's identification documents to Mr. Dubay is allowed in part.

Court Proceedings Prior to This Motion

[4] This matter has already been the subject of numerous court appearances and multiple court orders.

[5] Mr. Dubay brought an urgent motion prior to a case conference returnable October 9, 2019 requesting an order compelling Ms Borgford to return to the jurisdiction of Brantford with Leo. Mr. Dubay's position at that time was that Ms Borgford had left Brantford with Leo to the area of Temiskaming Shores, some six hours north of Brantford, without his permission or prior consultation. My judgment on Mr. Dubay's urgent motion was released on October 29, 2019, dismissing the motion as having not met the test. I found that on the evidence before me on that motion, there was no evidence that Ms Borgford's move out of the city of Brantford was for the specific purpose of frustrating Mr. Dubay's access.

[6] Subsequent to my dismissal of Mr. Dubay's urgent motion, Ms Borgford's then counsel brought a motion to be removed and an order was granted accordingly. Ms Borgford was then a self-represented party but did not appear in person before the Court for any of the court appearances in 2019, despite direction, by way of endorsement for her to do so.

[7] Ms Borgford failed or refused to comply with my order giving Mr. Dubay access, leading to my making the order for Mr. Dubay to have custody of Leo which included a clause for police enforcement. As a result of that order, Mr. Dubay was able to attend the municipality in which Ms Borgford was residing with Leo and take custody of him, with the assistance of police.

[8] As a result of Ms Borgford's failure to comply with my previous court orders regarding access and attendance at court, my order granting Mr. Dubay custody of Leo did not provide Ms Borgford with any access to Leo.

[9] Since Ms Borgford has re-engaged with the court process and retained new counsel, the parties have been unable to reach an agreement as to a parenting schedule that would allow Ms Borgford some regular time with Leo.

[10] A case conference now having been held, motions were brought by both parties and argued on August 10, 2020.

Issues

[11] The issues to be determined by me are as follows:

(1) What is the appropriate parenting schedule for Leo given his age and the distance between the homes of Ms Borgford and Mr. Dubay?

(2) Who should be responsible for providing the transportation for Leo to and from the homes of his respective parents?

(3) Is there sufficient evidence that I should impute income to Ms Borgford and order that she pay child support?

(4) Should Mr. Dubay have possession of Leo's original birth certificate and health card?

Parenting Schedule

[12] Although the parties resided together in Brantford during their relationship, Ms Borgford relocated to Haileybury shortly after separation, to be closer to her family. Mr. Dubay continues to reside in Brantford.

[13] In her Notice of Motion, Ms Borgford proposes a week-about parenting schedule or in the alternative a two week rotation, for Leo, between the homes of his parents. During the motion argument, counsel for Ms. Borgford conceded that given Leo's age and the distance between the parents' homes, approximately six (6) hours of driving one-way, a two-week rotation would be more appropriate.

[14] Mr. Dubay opposes any access for Ms Borgford with Leo outside of the City of Brantford. He takes the position that the travel between Brantford and Haileybury is too far for Leo to be travelling at his age. Mr. Dubay is also concerned that Ms Borgford will not return Leo, were she allowed to take him to her home in Haileybury.

[15] The starting point for any determination as to a parenting schedule is the maximum contact principle. However, this principle is tempered and informed by the facts in evidence as to what parenting schedule would be in the best interests of the children. In a case such as this, the time Leo will be travelling in a vehicle between the homes of his parents is a relevant consideration.

[16] There is very little evidence before me on this motion about either parents ability to care for Leo. Based upon the evidence on the motion, it is undisputed that both Ms Borgford and Mr. Dubay are willing and able to care for Leo and are attached and bonded with Leo.

[17] What was not raised on the motion was the issue of COVID-19 and the current realities all families are facing during this global pandemic. Ms Borgford has two other children from a previous relationship who are of school age. Mr. Dubay's other son is not currently in school but is anticipated to be in daycare in the near future. Neither party led evidence or made submissions about the potential impact of Leo's siblings being in school or in a daycare setting and the possible exposure to COVID-19 as a result.

[18] It is a relevant consideration during this time of physical distancing in a global pandemic that not only will Leo be travelling between the homes of his parents but also between jurisdictions far removed from one another. There is currently no consensus among medical experts or public health officials as to what extent very young children are susceptible to contract and/or transmit COVID-19. Based on the evidence before me, it would appear neither Mr. Dubay nor Ms. Borgford has turned their mind to the potential risk to themselves or their respective extended families that Leo's travelling between households could pose.

[19] Neither party led any evidence as to what physical distancing measures they have implemented in their own households, nor what, if any, steps they have taken to reduce the risk of exposure to COVID-19 by either isolating or "bubbling" with specific family or friends. I cannot therefore determine the extent of the risk that will be created by Leo spending time between both households, particularly after the start of the school year, when Leo's sisters will be returning to school.

[20] As the parties have not addressed the impact of COVID-19 on any parenting schedule imposed by the Court, I am left to conclude that both Mr. Dubay and Ms Borgford are comfortable with the potential risks created by Leo travelling back and forth and spending time at both households. There are ranges of risk tolerance among the general public and I would have expected that if there were any high risk people proximate to either parent that issue would have been raised on this motion.

[21] I do not agree with Mr. Dubay's position on this motion that Ms. Borgford need show a material change in circumstances in order to change the current no access order. The order for no access was never intended to set a new status quo, but rather was the result of Ms. Borgford's unwillingness or inability, to meaningfully engage in the court proceedings. This motion is essentially the first opportunity for the court to hear from both parties on what the appropriate parenting schedule should be, and to engage in an analysis of what is in Leo's best interests, based on fulsome evidence filed with the court. In that regard, I find that the proper approach on this motion is a de novo determination of what the parenting schedule should be.

[22] Although I understand Mr. Dubay's reticence to agree to Leo travelling to, and spending time with Ms. Borgford in her home, out of concern that he will not be returned, I accept that Ms. Borgford, having experienced police intervention to remove Leo from her care, does not wish to put Leo or herself through that again. I therefore find the risk that Ms. Borgford will not comply with any court order to return Leo to Mr. Dubay is now minimal and it is appropriate for Ms. Borgford to have some parenting time with Leo at her home in Haileybury.

[23] It is important for children to spend time with their parents in as natural a setting as possible. Spending time with a toddler in a hotel room is not meaningful as activities are severely restricted, and the ability for Ms. Borgford to provide healthy meals for Leo is not available. I accept that it is also not possible for Ms. Borgford to travel from Haileybury to Brantford with both of her children, one of whom is disabled and may have difficulties with the long travel. Time for Leo with his sisters is equally as important his time spent with his brother while in Mr. Dubay's home.

[24] The evidence before me is that both Mr. Dubay and Ms. Borgford are adequate parents. I find that were Ms. Borgford residing in Brantford, or even in a jurisdiction much closer than Haileybury, the appropriate parenting schedule would be some form of shared parenting. However, given that the travel time between the parents' homes is a minimum of six hours of driving, I cannot find that a shared parenting regime is in Leo's best interests. The Google maps appended to Ms. Borgford's affidavit, sworn July 11, 2020, indicates the distance is either 597 kilometres, using toll highways, or 675 kilometres avoiding toll highways. Although the Google maps print out translates those distances into 5 hours and 55 minutes and 6 hours and 43 minutes of driving respectively, that assumes non-stop driving with no significant traffic disruptions.

[25] It would be unreasonable for me to conclude that travelling a distance of 675 kilometres could be completed without any stops for food or washroom breaks. It is far more reasonable to assume that travel time between Brantford and Haileybury would take closer to 8 hours. Bearing that in mind, the issue then becomes how often is it appropriate for Leo to be travelling for that duration. I find that having Leo spend 8 or more hours travelling in a car, even every other week, is not in his best interests. However, I find that Leo can and should travel to see his mother and spend extended periods of time with her at her home, albeit on a somewhat less frequent basis than Ms. Borgford is requesting. The viability of my imposed temporary parenting schedule will also have to be revisited once the winter months come, as travel by car up north, can be treacherous.

[26] Ultimately I have determined that given the distance between the parents' homes, it is appropriate for Leo to spend a two week period with his mother every six weeks. The resulting schedule will be that Leo will be in the care of his mother for two weeks and then in the care of his father the following four weeks.

Transportation

[27] Both Ms Borgford and Mr. Dubay are of extremely modest financial means. Neither own their own motor vehicle. They will both, therefore, have to rely on family or friends to provide transportation for Leo between Brantford and Haileybury.

[28] I am cognizant of the fact that Ms Borgford chose to relocate to Haileybury from Brantford, where the parties were ordinarily resident while they were cohabitating. However, I accept that Ms Borgford moved away to be near family supports after the parties' separation.

[29] I have also considered the history of these proceedings, in particular, Ms Borgford leaving Brantford with Leo, and refusing, for a period of time, to disclose her address. Although I have found the likelihood of Ms. Borgford now failing or refusing to comply with court orders is minimal, I find the way to eliminate that risk entirely is to make an order that each parent be responsible for picking up Leo at the commencement of their parenting time.

Imputation of Income

[30] Ms Borgford may be able bodied and able to obtain employment, but that is not the only factor to be considered in determining whether I should impute income to her at this time. I must consider all of her other personal circumstances, as well as the current economic reality facing all Canadians during the pandemic.

[31] Ms. Borgford is the sole caregiver for two other children, including one child who is disabled. The likelihood that she would be able to secure affordable child care for both children during the summer months in minimal. The issue of affordable child care has only been exacerbated during the pandemic. I must also consider that Ms. Borgford's child who is disabled would likely need specialized child care.

[32] Canadians across the country have faced economic hardship during the pandemic as businesses were required to shut their doors in March. Not every business has re-opened and many Canadians are still without work. Ms. Borgford was not working at the time of the economic shut-down and I find that it is highly unlikely that she would be able to find employment at this time, particularly in a town as small as Haileybury.

[33] I find that in all the circumstances it is not appropriate for me to impute income to Ms. Borgford at this time, and she does not have sufficient income without employment, to pay child support.

Leo's Birth Certificate and Health Card

[34] Mr. Dubay's evidence is that he requires Leo's personal identification for the purposes of obtaining social housing, enrolling Leo in daycare, applying for a social insurance number for Leo, and/or opening a bank account. However, Mr. Dubay has not attached to his affidavit proof that he requires Leo's original birth certificate for his housing application, nor for enrollment in daycare.

[35] The issue of Leo's health card is different in my view than Leo's original birth certificate. The parent having care of Leo at any given time should have Leo's original health card in his or her possession. If Leo requires emergency medical care presenting an actual health card will ensure smooth and timely treatment without issue. I am satisfied that a copy of Leo's health card being provided to Mr. Dubay is insufficient.

[36] I am not of a similar view regarding Leo's birth certificate. Mr. Dubay has not presented evidence that he has been unable to obtain necessities of life for either he or Leo that he otherwise would have been able to obtain had he been in possession of Leo's original birth certificate. His evidence contains a vague statement regarding things for Leo that Mr. Dubay intends to do, without specification, but for which he states he needs "identification".

[37] I am somewhat concerned, given the history of these proceedings, that the physical possession of Leo's birth certificate is symbolic of power and control. Although Leo is not yet two years old, his personal identification is still rightfully Leo's, and is only being held in safe-keeping by either of his parents.

[38] I am not satisfied on the evidence before me that Mr. Dubay needs to have personal possession of Leo's physical birth certificate at this time.

Conclusion

[39] For all the foregoing reasons, a temporary order shall issue as follows:

(1) The Respondent mother shall have parenting time with Leo for a 2 week period (14 consecutive days) every 6 weeks from Sunday to Sunday, commencing Sunday August 16, 2020.

(2) The Respondent mother shall be responsible for picking up Leo at the commencement of her parenting time in the city of Brantford at a time to be arranged through counsel or a mutually agreed upon third party, failing which the pick up time shall be 12 noon.

(3) The Applicant father shall be responsible for picking up Leo at the end of the Respondent mother's parenting time in the Town of Haileybury at a time to be arranged through counsel or a mutually agreed upon third party, failing which the pick up time shall be 12 noon.

(4) A copy of Leo's health card shall travel with Leo at all times and the Respondent mother shall specifically ensure that at the end of her first parenting period in August 2020, Leo's original health card is transferred to the Applicant father in trust for Leo.

(5) The balance of the motion brought by each party, is dismissed.

(6) Counsel may electronically file written submissions on the issue of costs, if so desired, within 30 days of the release of this decision.

Released: August 13, 2020

Signed: Justice A.D. Hilliard