CITATION: S.W.-S. v. R.S., 2021 ONCJ 646
DATE: December 9, 2021
COURT FILE NO. D41314/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
S. W.-S.
PAMILA BHARDWAJ, for the APPLICANT
APPLICANT
- and -
R.S.
MIKESH H. PATEL, for the RESPONDENT
RESPONDENT
HEARD: DECEMBER 1, 2021
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] The applicant (the mother) has brought a motion to change the respondent’s (the father’s) temporary parenting time with their two children, ages 8 and 4 (the children), from in-person to virtual because she says that the father is unvaccinated and is not following COVID-19 health protocols.
[2] The father asks that the mother’s motion be dismissed.
[3] The motion was argued on December 1, 2021. At the conclusion of the hearing, the court suspended the father’s in-person parenting time pending the release of this decision.
[4] The issues for the court to decide are:
a) Has there been a material change in circumstances that affects or is likely to affect the best interests of the children?
b) If so, what temporary parenting orders are in the children’s best interests?
Part Two – Brief background facts
[5] The father is 36 years old. The mother is 33 years old.
[6] The parties were married in April 2012 and separated in February 2020.
[7] The children have lived with the mother since the parties separated.
[8] The father has been charged with Uttering Threat to Cause Death/Bodily Harm regarding the mother. The criminal case is still outstanding.
[9] The mother issued her application on March 30, 2021, seeking orders for sole decision-making responsibility for the children and child support.
[10] The father issued his Answer/Claim on April 23, 2021, seeking orders for sole decision-making responsibility for the children and parenting time.
[11] On May 3, 2021, on consent, Justice Robert Spence made a temporary order that the primary residence of the children be with the mother and that the father have parenting time with the children on alternate weekends from Friday after school/daycare until Sunday evening and on Tuesdays overnights. The order also made provisions for third party parenting exchanges if the children’s school or daycare was closed. This remains the operative court order.
[12] The father has regularly exercised his parenting time with the children.
[13] On September 2, 2021, the parties appeared before Justice Spence. Justice Spence endorsed that “the father says he is not vaccinated and does not intend to be. He does not have a medical reason, claiming, it’s his body and his choice”. He also noted that the father has refused to pay any support to the mother. He made orders for the father to provide disclosure to the mother.
[14] This was the first time that the mother had heard that the father was unvaccinated.
[15] On September 10, 2021, Justice Spence gave the mother leave to bring this motion.
[16] The father remains unvaccinated. The mother is fully vaccinated.
Part Three – Legal considerations on a motion to change
[17] Section 29 of the Children’s Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[18] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change parenting orders as follows:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
[19] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
[20] It is a longstanding legal principle that absent evidence of a material change in circumstances requiring an immediate change, the status quo is ordinarily to be maintained until trial. See: Niel v. Niel, 28 R.F.L. (Ont. C.A.); Grant v. Turgeon, 2000 CanLII 22565 (ONSC); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (ONSC).
[21] A court should be more willing to change a temporary order when a trial date is not imminent and the best interests of the child justify it. See: Closner v. Closner, 2019 ONSC 703 (Div. Ct.).
[22] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.
[23] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
[24] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. The court considered those factors that are relevant to this case.
[25] Subsection 24 (6) of the Act addresses the allocation of parenting time. It reads as follows:
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[26] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
[27] In considering a child’s best interests, it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.
[28] Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.
Part Four – Does the father’s vaccination status increase the children’s risk of contracting COVID-19?
[29] The father submits that the children are at no higher risk of contracting COVID-19 in his care just because he is unvaccinated. His counsel submitted that the children are not immunocompromised, so why should the father get vaccinated?
[30] Since the father has raised this issue, the court will briefly address it.
[31] All levels of government in Canada have issued health guidelines strongly urging people to become fully vaccinated – to protect themselves and to protect others in the community from contracting COVID-19. Vaccination is now the most important public health measure in fighting the pandemic. All levels of government have placed restrictions on the activities of persons who are unvaccinated to protect the general public – including requiring persons who work for the government to be fully vaccinated.
[32] There is no question that the children are at a higher risk of contracting COVID-19 while in the father’s care because he is unvaccinated and that they have increased exposure to dangerous health consequences that can arise from contracting this virus.
[33] In A.G. v. M.A., 2021 ONCJ 531, a mother sought to suspend the father’s in-person parenting time with their child because the father had only had a single vaccination. Following B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, (affirmed on appeal, 2021 ONSC 6294), Justice Robert Spence took judicial notice that the harm to a child flowing from contracting a vaccine-preventable disease may include death. He found that the father not being fully vaccinated increased his risk of infection for COVID-19 and potentially exposed his child to an increased risk of infection.
[34] A.G. was followed by this court in L.S. v. M.A.F., 2021 ONCJ 554. The court will follow it again here.
Part Five – Material change in circumstances
[35] The court finds that there has been a material change in circumstances that affects or is likely to affect the best interests of the children. The father is eligible for vaccination and has chosen not to be vaccinated. The mother just learned about the father having chosen not to vaccinate himself on September 2, 2021. The father’s choice not to vaccinate himself directly affects the physical safety of the children – a primary consideration under subsection 24 (2) of the Act.
[36] The court also finds that this material change in circumstances constitutes a compelling reason to change the parenting status quo on a temporary basis.
Part Six – The evidence
5.1 The mother
[37] The mother wants the children protected from contracting the COVID-19 virus. She is fully vaccinated and says that she follows all government health protocols. She says that the father will not protect the children from the virus. She described him as an anti-vaxxer and an anti-masker.
[38] The mother deposed that the father told her on September 20, 2021 that he has no intention of getting vaccinated. He told her that there is no law to force him to become vaccinated.
[39] The mother attested that the father warned her that she better not have the children vaccinated or else he would take measures into his own hands. The father denies ever having said this to her.
[40] The mother said that the father has been causing conflict at the daycare when conducting parenting exchanges, arguing and being disrespectful to staff in the presence of the children. She said that he has encouraged their 8-year-old son to take his mask off before leaving the daycare and that her son is now becoming rebellious with the teachers. She says that this child is becoming confused because she and the father are giving him contradictory instructions about masking.
[41] The mother deposed that she was advised by the children’s daycare teacher that the father, on one occasion, dropped the children off at daycare without masks. The teacher asked him to get a mask from the screening room, as she could not leave the other children unattended. The father refused and told her it was her problem and left.
[42] The mother seeks an order that the father only have virtual parenting time until he is fully vaccinated.
6.2 The father
[43] The father feels that there is no basis to change his parenting time with the children.
[44] The father denies that he is an anti-vaxxer or anti-masker. He describes himself as vaccine hesitant. He says that he takes COVID-19 seriously and follows all government health protocols.
[45] The father gave the court no indication that he intends to get vaccinated.
[46] The father denied that he has had conflict with the daycare staff or that he has taught the children to be disrespectful to staff. He said that his concern was that the older child was complaining to him about being unable to breathe with the surgical mask he had been provided. He merely wanted the child to pull up the mask at times to breathe. He said that he would never tell the children not to wear a mask or to disrespect their teachers.
[47] The father said that the mother is manipulative and tries to use half-truths as a litigation strategy.
6.3 The father and the daycare
[48] The father taped a meeting that he had with a daycare staff member and attached a certified copy of the transcript of that meeting to his affidavit.
[49] The father felt that this transcript would help his cause. It did not.
[50] It is very concerning that the father felt the need to tape his interaction with the daycare staff member. It showed that he did not trust the daycare and reinforced the mother’s allegation that he was in conflict with the daycare.
[51] In the transcript the father says the following to the daycare worker:
This is what happened, so I, I just said, um, I am going to um, I send (the older child) back for it without his mask, I took the mask and I rip it up ‘cause I don’t want him to wear the mask, it’s very uncomfortable for him. He’s right there, you can ask him everytime. Yes.
[52] The father’s counsel submitted that the father ripped up the child’s mask because he was frustrated because he had had problems with the daycare previously.
[53] It is concerning that the father engaged in these discussions with the child present and inserted him into the discussion.
[54] The father also complains to the daycare staff member in the transcript that he doesn’t like the attitude of another daycare staff member, once again reinforcing the mother’s allegation that he has had conflict with the daycare.
6.4 Findings
[55] The court prefers the mother’s evidence where it conflicts with the father’s evidence.
[56] The evidence shows that the father has been in conflict with the children’s daycare in the presence of the children and that on one occasion he ripped up a child’s mask at the daycare.
[57] The court finds it is likely that the father is sending the children confusing messages about masking and about properly protecting themselves from COVID-19. The older child has recently been in more conflict with daycare staff.
[58] The court also finds that the father is not following all government health protocols for COVID-19 and that he is resistant to vaccination.
Part Seven – Legal considerations when a parent does not follow COVID-19 health protocols
[59] When the pandemic started in March 2020, case law came out stating that 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. There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict the other’s parenting time to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID-19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.
[60] However, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 raises sufficient concerns about parental judgment that direct parent-child contact is not in a child’s best interests. In Ribeiro v. Wright, 2020 ONSC 1829, Justice Alex Pazaratz wrote at paragraph 14 that there should be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
[61] Justice Pazaratz went on to write at paragraph 23 of Ribeiro that “judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. …”
[62] Since the release of Ribeiro, other courts have held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others. See: Skuce v. Skuce, 2020 ONSC 1881, at para. 85.
[63] In A.T. v. V.S., 2020 ONSC 4198, the court made an order for no in-person parenting time for a father who refused to follow COVID-19 health protocols.
[64] In Balbontin v. Luwana, 2020 ONSC 1996, Justice David Jarvis wrote that parents cannot ignore the other parent’s inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local, he said, have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Justice Jarvis suspended the parenting time of a parent who was not responsive to the other parent’s inquiries.
[65] In determining a suspension of face-to-face contact the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID-19 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. The court must balance the harm of COVID-19 exposure with harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.
[66] In A.G., supra, where the mother sought to terminate the in-person parenting time of a parent who had only had a single vaccination, Justice Spence wrote that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time from two hours to one hour each week and requiring that it take place outdoors.
[67] In L.S. v. M.A.F., supra, the mother only learned at trial that the father was unvaccinated. The mother did not seek to reduce the father’s parenting time of three hours each week but sought additional safety precautions. This court made the following orders to reduce the child’s chances of contracting the virus during the father’s parenting time:
a) The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home.
b) The child shall not attend the father’s home. This is because both the father and the paternal grandfather, who reside together, are unvaccinated.
c) The child and the father shall wear masks at all times during the father’s parenting time.
d) Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time. This means that the paternal grandfather, if he is not fully vaccinated, cannot have in-person parenting time with the child at this time.
e) If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.
f) If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.
Part Eight – Discussion
[68] The father can choose not to vaccinate himself to protect himself from contracting COVID-19. He can also choose to not protect the community by vaccinating himself. However, when he chooses to not protect the children from contracting COVID-19 by not vaccinating himself, this is a parenting choice that affects their best interests and reflects poorly on his parenting judgment.
[69] The father offered no reason why he is not getting vaccinated (such as a medical or religious reason). He has chosen to remain unvaccinated even when faced with the real possibility that his parenting time would be severely restricted. This informs the court that his views about vaccinations are strongly entrenched. It also informs the court that he is prepared to put his own interests ahead of the children’s need to be protected from contracting COVID-19 and their need to have a meaningful relationship with him.
[70] The father insists that he follows government health protocols, other than vaccination, and takes COVID-19 seriously. However, his conflicts with the children’s daycare staff, including over masking, and his ripping up a mask at the daycare inform the court that his commitment to other COVID-19 public health measures is ambivalent at best. This is important because if he was committed to following other COVID-19 public health measures it would mitigate the risk to the children of his being unvaccinated.
[71] The father’s conduct also informs the court that he is impulsive and immature. The court has little confidence that the father is willing or able to consistently do what is required to protect the children from contracting COVID-19.
[72] These concerns need to be balanced against other factors affecting the children’s best interests. The children have a close relationship with the father and see him regularly, including on overnights. Virtual parenting time is a poor substitute for this important relationship.
[73] The court also considered that neither of the children nor anyone else in the mother’s home are immunocompromised – reducing the risk level.
[74] The court will balance these considerations by permitting the father some in-person parenting time. However, the parenting time will be limited in duration and frequency and be subject to strict conditions to protect the children.
[75] The father’s in-person parenting time will take place on each Sunday from 2 p.m. until 4:30 p.m., starting on December 12, 2021. It will be subject to the following conditions:
a) The father’s parenting time shall be exercised either outdoors or in his home.
b) The children and the father shall wear masks at all times during the father’s parenting time.
c) Other than the father, the children shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time.
d) If the father, or any person that the children will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.
e) If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.
[76] The father is cautioned that the court will treat a breach of these safety conditions seriously. The court could suspend in-person parenting time or add conditions, such as requiring him to obtain and provide the mother with proof of a negative COVID-19 test before exercising each visit, at his expense.
[77] The court will make an order for daily virtual parenting time as suggested by the mother.
[78] The third-party exchange arrangements in Justice Spence’s May 3, 2021 order shall continue, with necessary modifications.
[79] The father shall be prohibited from attending at or communicating with the children’s daycare or school. It is not in the children’s best interests to be exposed to his conflict with staff. He has already inappropriately exposed them to such conflict.
Part Nine – Conclusion
[80] An order will go as follows:
a) Paragraphs 2 and 3 of the May 3, 2021 order of Justice Spence shall be changed to read as follows:
i) The father shall have in-person parenting time with the children each Sunday from 2 p.m. until 4:30 p.m., starting on December 12, 2021.
ii) The father’s parenting time shall be exercised either outdoors or in his home.
iii) The children and the father shall wear masks at all times during the father’s parenting time.
iv) Other than the father, the children shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time.
v) If the father, or any person that the children will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.
vi) If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.
vii) The parenting exchanges shall take place outside the father’s residence. The mother shall arrange for a third party who shall drop the children outside the father’s apartment building and remain in her car. The children shall walk to the lobby of the father’s residence where he will meet them. The third party shall drive away after the father greets the children in the lobby. The exchange at the end of the visits shall take place in the same manner. The father shall bring the children down to the lobby of his residence. The third party shall remain in her car. The children shall walk out to the car.
viii) The father shall have daily virtual parenting time with the children on their cellular phones from 7 p.m. to 8 p.m.
b) Paragraphs 1, 4, 5 and 6 of the May 3, 2021 order of Justice Spence shall remain in full force and effect.
c) Pursuant to section 28 of the Act, the father shall not attend at the children’s school or daycare. He shall also not communicate with staff at the children’s school or daycare.
[81] If the father becomes fully vaccinated, the court expects the parties to negotiate a new parenting time plan. If they cannot agree, the father may bring a Form 14B motion, on notice to the mother, seeking an early case conference to address his parenting time. The father being fully vaccinated will be considered a material change in circumstances affecting the best interests of the children.
[82] If the mother seeks costs, she shall serve and file written submissions by December 20, 2021. The father will then have until January 5, 2022 to serve and file his written response. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office. Both parties should deliver bills of costs.
[83] The return date will be on March 24, 2022 at 11:00 a.m. for a trial management conference by videoconference. Briefs are required.
Released: December 9, 2021
_____________________ Justice S.B. Sherr