Court File and Parties
COURT FILE NO.: FC-17-1208 DATE: 2020/03/27 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Natalie Betty-Ann Tessier, Applicant, self-represented -and- Tyreese Jamal Bradley Damon Rick, Respondent, self-represented
BEFORE: Justice P. MacEachern
HEARD: no hearing, determined in writing
Endorsement
Endorsement -- COVID 19 Protocol
1AS A RESULT OF COVID-19, this determination of urgency is made according to the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”]. Under that Notice, the regular operations of the Ontario Superior Court of Justice have been suspended since March 15, 2020, until further notice.
2Justice Kershman made a final order in this matter dated October 23, 2018. This order provides for the father to have regular access to the parties’ 3.5-year-old child, on alternate weekends and every Wednesday evening. The mother is denying this access due to the COVID-19 situation.
3The father wishes to bring an urgent motion to obtain an order requiring the mother to comply with the terms of access set out in the October 23, 2018 order of Justice Kershman. The father also seeks make-up time, police enforcement, an order directing the mother to remove various social media accounts under the child’s name and to cease posting photos of the child that he states are inappropriate and place the child at risk.
4The father has filed an affidavit (unsworn) and a Form 14 D “Order on Motion Without Notice.” This document, although it uses the wrong form, sets out the relief the father seeks and therefore constitutes his Notice of Motion.
5The mother has filed two affidavits - one dated March 24, 2020, and one dated March 25, 2020. Both are unsworn. The mother acknowledges that she has denied the father’s regular access, but takes the position that this is in the best interests of the child. The mother raises concerns that the father’s household is not abiding by the social isolation directives of public health authorities, that the father is minimizing the risks posed by COVID-19 and therefore the need for precautions, and that the father’s use of public transit to transport the child to and from access, and possibly during access, exposes the child to risks. The mother has filed several texts between the parties that appear to support these concerns. The father has not yet responded to the mother’s allegations.
6The first issue, though, is urgency and whether any of the matters in dispute between the parties need to be addressed on an “urgent” basis given the current COVID-19 situation and the Chief’s Notice.
7The regular operations of the Ontario Superior Court are currently suspended due to the COVID-19 situation. The Court will continue to hear urgent matters during this emergency period, but what constitutes an emergency is, of necessity, narrowly defined. In family law matters that do not involve child protection proceedings under the Child, Youth and Family Services Act, the Chief’s Notice specifies that the Court will hear urgent issues related to the safety and well-being of a child.
8Both parties were directed to the Chief’s Notice before filing their material.
9In Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazaratz eloquently reviewed how the Court will approach COVID-19 related parenting issues. I echo Justice Pazaratz’s views. I am directing that a copy of the decision in Ribeiro v. Wright be provided to both parties with a copy of this endorsement. I further order both parties to carefully read and review the entirety of Justice Pazaratz’s decision before taking any further steps in this matter.
10There is an existing order in this matter that provides for the father to have regular access to the child. There is a presumption that all orders should be respected and complied with. In this matter, the mother has provided material that supports her concerns regarding the child’s exposure to risk while in the father’s care. The father has not yet had an opportunity to respond to this material.
11I am prepared to treat this matter as the mother’s motion to suspend or vary the father’s access due to her allegations that the child is exposing the child to significant risk due to not complying with COVID-19 safety measures.
12The onus, therefore, is on the mother to provide specific evidence or examples of behaviour or plans by the father that are inconsistent with COVID 19 protocols and expose the child to risk. I find that the mother’s material, although unsworn at this point, provides a basis in support of such a finding.
13I find that an urgent motion is warranted but only on the narrow issue of whether the father’s regular access should be varied, temporarily, due to the mother’s allegations that the father is exposing the child to significant risk, due to not complying with COVID-19 safety measures. While the withholding of access, particularly over a short period, such as one, two or three weeks, would not usually meet the threshold of urgency, in this situation, it appears that the mother intends to deny the father access for an extended period. Also, the child’s young age (3.5 years) is a factor that favours a finding of urgency. These factors, along with the evidentiary basis supporting apparent risks to the safety and well-being of the child, are what make this matter urgent.
14I also find that the current situation, as well as the mother’s apparent attempts to negotiate a resolution, justifies this motion being heard before a case conference being held, based on urgency (see Rosen v. Rosen).
15The father’s requested relief for make-up access is not urgent. These issues will not be the subject of the urgent motion. Neither party shall file material on this issue.
16The father’s requested relief for an order directing the mother to remove various social media accounts under the child’s name, and to cease posting photos of the child that he considers inappropriate, are not urgent. These issues will not be the subject of the urgent motion. The father has not provided an evidentiary basis for his allegations that these issues create an immediate state of urgency related to the child’s safety and well-being. Neither party shall file material on this issue.
17The father’s requested relief for an order for police enforcement of any access between the parties is also not urgent. Aside from the current states of emergency that are already taxing our public institutions, including the police, the Court has several tools of its own to compel compliance with its orders.
[18] The urgent motion shall proceed in the following manner: a. A motion shall be scheduled before me, for 45 minutes, by the Trial Coordinator, to take place by conference call. The motion shall be scheduled for a date to be heard in the next 14 days that accommodates the timelines set out below. b. The motion shall proceed on the material that each party has already filed with the Court. As this material is unsworn, at the outset of the hearing, each party shall be required to affirm, on the record, that the content of their affidavits is true to the best of their information and belief. c. Also, on or before March 30, 2020, at 4 pm, the father may serve and file a further brief affidavit, of no more than five pages in length, plus exhibits, responding to the mother’s allegations that the child is at risk in his care because of compliance with COVID-19 protocols, including his position, and supporting evidence, on the issue of his household’s compliance with COVID-19 safety measures, his use of public transit, and any risks to the child as a result. The father’s responding affidavit should include his specific and realistic proposal for access, which adequately addresses all COVID-19 considerations, in a child-focused manner (the mother proposes that the father have skype access in place of physical access). d. The mother may serve and file a brief reply affidavit of no more than three pages in length in response to the father’s affidavit, plus exhibits, on or before April 1, 2020, at 4 pm. e. In the ordinary course, the parties would be required to serve and file appropriate pleadings to constitute this matter, as required under Rule 15 of the Family Law Rules (Motions to Change). I suspend the requirement for either party to file pleadings in this matter until further order of the Court, or the resumption of the regular operations of the Ontario Superior Court of Justice, whichever occurs first.
19I reiterate my direction to the parties to read and review the entire decision of Justice Pazaratz provided to them with a copy of this endorsement, and to make every effort to negotiate, in a cooperative manner, solutions that are in the best interests of the child given the current situation.
Dated: March 27, 2020 Justice P. MacEachern
