Court File and Parties

COURT FILE NO.: 158/20

DATE: 20200330

SUPERIOR COURT OF JUSTICE (FAMILY COURT) - ONTARIO

RE: Justin Andrew John Algy Ramanauskas, Applicant

AND:

Kerri Ann Rochelle Podwinski, Respondent

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: K. Sah, Counsel, for the Applicant D. Ang, Counsel, for the Respondent

HEARD: March 27, 2020

decision on urgent motion

Introduction:

[1] The respondent sought and received an order from the triage judge, Justice W. L. MacPherson, permitting her to proceed with an urgent motion concerning the parties’ son, Elias Michael Jonas Ramanauskas (“Elias”).

[2] That permission was necessary because as a result of COVID-19, regular Superior Court of Justice operations were suspended as set out in the Notice to Profession of the Chief Justice of Ontario[^1].

[3] Although I did not have access to the Continuing Record, it appears that no case conference has been held and I accept that the order of Justice MacPherson constitutes a finding that there is a situation of urgency under subrule 14(4.2) of the Family Law Rules[^2].

[4] In the notice of motion, the respondent requested a temporary order that the parties have joint custody of Elias, that the applicant deliver Elias to the respondent each Thursday at 6:00 p.m.and pick him up each Sunday at 6:00 p.m., or at such other times as the parties might agree. There was also a claim for child support in the notice of motion although no submissions were made in that regard.

[5] The motion proceeded by teleconference. Present on the call were each of the two parties and their counsel.

[6] In advance of the hearing, I was provided with electronic copies of an affidavit by the respondent, sworn March 18, 2020, an affidavit by the applicant sworn March 24, 2020 and an affidavit by Hanna Heemskerk, the child’s nanny, also sworn March 24, 2020.

[7] According to the affidavit of the applicant, Ms. Heemskerk had been engaged as a caregiver for Elias during the week of March 16 following the closure of his regular daycare facility as a result of COVID-19. Due to contact with her brother who had returned from the United States, Ms. Heemskerk was considered by the applicant to be in a high-risk category for contracting COVID-19. She was tested on March 20, but the test results are not yet known. The applicant submits that, if Ms. Heemskerk tests positive for the virus, there is a high likelihood that Elias will also be affected. Pending the test results, Elias and Ms. Heemskerk are being isolated together, presumably in the home of the applicant.

[8] Despite the uncertainty surrounding the exposure of Elias to COVID-19, both parties wished the matter to proceed rather than be adjourned pending receipt of the test results.

Proper evidence:

[9] Attached to the affidavit of the respondent was a document entitled: “Schedule A”. It was referred to in the affidavit following the name and address of the deponent and before any of the text of the affidavit with the phrase: “Please find Schedule A for more details”. The schedule consisted of a three-page document in which the respondent provided information under the headings “My Mental Health and Relevant Past Medical History”, “My parenting concerns re: Justin”, “Addictions”, and “Acts of Intimate Partner Violence” (with further subheadings). In effect, it was an unsworn statement within an affidavit.

[10] In addition, attached to the affidavit of the respondent were Exhibits A through T, consisting of what appear to be text messages although the dates, times and parties to the messages were not consistently identified. All those exhibits were referenced in Schedule A and not in the body of the affidavit.

[11] Counsel for the applicant objected to admission of the exhibits on the basis that they were electronic records within the meaning of section 34.1 of the Evidence Act[^3] and that the respondent had failed to prove their authenticity as required by subsection 34.1(4) of that Act “by evidence capable of supporting a finding that the electronic record is what the person claims it to be.”

[12] Subrule 14(17) of the Rules provides that evidence on a motion may be given by affidavit or other admissible evidence in writing.

[13] It is critically important, particularly on a motion where cross-examinations have not taken place, that the materials filed contain reliable information. At a minimum, the evidence must be sworn by the deponent to be true. The evidence must be clear and unambiguous. These requirements are not mere technicalities. The court in this case is asked to make an important decision concerning a young child and needs to ensure that the evidentiary base for that decision is well-supported.

[14] Schedule A and the attached exhibits do not comply with the Rules and, at least as regards many of the texts attached as exhibits, are ambiguous as to the date, time and author. Therefore, although I am not excluding them from any consideration, I attribute to them minimal weight.

Background:

[15] The applicant is a family physician who maintains a local practice. The respondent is a registered nurse, employed in an acute care hospital setting and as an instructor at Brock University in the nursing department.

[16] The parties cohabited from about June 2016 to December 31, 2019. Elias was born April 1, 2017. Hanna Heemskerk was engaged as a nanny in the spring of 2018. On separation, the respondent left the family home in St. Catharines and rented a residence in nearby Fonthill.

[17] From January 1, until March 9, 2020, parenting time for Elias was shared by the parties, as set out in Exhibit G to the applicant’s affidavit. Elias typically attended daycare during weekdays when neither of the parties was available owing to their work schedules. Ms. Heemskerk acted as nanny after daycare, early in the mornings, and sometimes on weekends when the parties were not available. She also provided childcare to assist the parties when they were not working. Since the daycare closure owing to COVID-19 effective March 16, 2020, Ms. Heemskerk has been a full-time nanny for Elias.

[18] Elias has resided with the applicant during most of the time since separation. In January and February, he spent nine and seven overnights with the respondent, respectively.

Incident of March 8, 2020:

[19] The parties socialized together at the respondent’s home on the evening of March 7. Alcohol was consumed. The respondent rejected the applicant’s advances. He left at about 3:00 a.m. on March 8, apparently telling the respondent that he was going to a strip club.

[20] Later in the morning of March 8, the respondent arrived with Elias at the applicant’s home for an unannounced visit, “to bring him a coffee and have Elias spend quality time with his father”[^4]. She found the applicant in the company of another woman with whom he had had sex. According to the applicant, the respondent became enraged in the presence of Elias and she used vulgar, vile and inappropriate language. The applicant proceeded to drive the other woman home, leaving the respondent and Elias in his residence. The respondent deposed that she became enraged, put Elias into her car and then returned to the applicant’s home where she threw coffee onto his bed and emptied the contents of his refrigerator onto the bed and sofa and then left the premises. The applicant deposed that when he returned after an absence of about 20 minutes, there was much greater damage than that admitted by the respondent. Photo exhibits showed shattered mirrors, glass, dishes and other significant damage to his home.

[21] The respondent dropped off Elias at daycare on the morning of March 9, 2020.

[22] That same day, the respondent was charged criminally with mischief and a term of her undertaking was that she not communicate, directly or indirectly, with the applicant. Access to Elias was only to be through a third-party agreed to by the applicant, or pursuant to a written agreement, FACS Niagara instruction, or court order.

Access since March 9:

[23] Negotiations occurred between counsel as to parenting time for the respondent with Elias, given the prohibition on communication between the parties.

[24] In response to a letter from the respondent’s counsel dated March 12, 2020, counsel for the applicant proposed (by email at 9:38 a.m. on March 13) unlimited video access to be instigated by Ms. Heemskerk, as well as access supervised by the respondent’s parents for four hours on Saturday, March 14. The response on behalf of the respondent (by email at 12:20 p.m. on March 13) was to request that Elias be available for pickup by her at the Brock child care center at 3:30 p.m. that day. By return email at 2:27 p.m., counsel for the applicant “confirmed” that the applicant’s proposal for video access and supervised access was rejected. The final correspondence on the subject was by email from counsel for the respondent at 3:12 p.m., purporting to accept the applicant’s video and supervised access proposal.

[25] On Saturday, March 14, the child was brought by Ms. Heemskerk to the respondent’s home, but it was established that she was at work.

[26] It appears that there was a breakdown of communication. The respondent did not know that her agreement to the supervised access proposal that she had previously rejected was acceptable to the applicant.

[27] On March 19, counsel for the respondent requested access pending the return of this motion. It was agreed to take place on Saturday, March 21 from 10:00 a.m. to 6:00 p.m. in the presence of the child’s maternal grandparents. That visit did not take place owing to the COVID-19 concerns involving Elias and Ms. Heemskerk to which I have previously referred.

Analysis:

[28] The determination of this motion for temporary custody must be based on the best interests of Elias.

[29] Both parents have asserted that they have acted as his primary caregiver. Both have given examples of the extent of their involvement. It is not possible to determine, based on the untested material filed, whose position is preferable on this point. Nor is it necessary. I am satisfied that both parents have in the past contributed significantly to the child’s care. They have been involved parents.

[30] Each parent has deposed to significant love and affection for Elias and emotional ties with him. This was confirmed in the affidavit of Ms. Heemskerk. I accept that to be the case.

[31] I turn then to the ability and willingness of the parties seeking custody to provide Elias with guidance and education, and the necessaries of life.

[32] Both parties are employed on a full-time basis and they are able to provide financially for the child. The observations of Ms. Heemskerk, if not the affidavits of the parties themselves, make clear that they are willing to provide guidance and education.

[33] Serious allegations have been made by the respondent against the applicant as to his behavior including what she characterizes as manipulation, and emotional and verbal abuse toward her. She has accused him of being addicted to alcohol, drugs and sex. Those allegations are all denied.

[34] In turn, the applicant alleges that the respondent has mental health issues showing traits of borderline personality disorder, that she has a history of attempted suicide, a criminal record for driving under the influence of alcohol, and that she is prone to violent behavior of which the March 8, 2020 incident was the most recent example. The respondent admits to a history of mental health issues but points to her successful employment and professional accomplishments in support of her position that her condition is stable.

[35] Regardless of the damaging allegations made by each party against the other as to their parenting capacities, the fact is that there was a flexible time-sharing arrangement that existed for over two months from the date of separation up to the March 8 incident. During most of that time, Elias had contact with both his parents. Although there were communication issues between the parties (which is not unusual with recently separated couples), the main problem appeared to have been the lack of time Elias was spending with his mother from the applicant’s point of view.

[36] Clearly the March 8 incident showed poor judgment on the part of the respondent. Either Elias was present when significant damage was done by her to the applicant’s home or he was left alone and unattended in a car when the event occurred. I do not accept the respondent’s attempt in her affidavit to minimize the damage caused, or to characterize her actions as non-violent, in view of the photographic evidence provided by the applicant and his sworn evidence. It is not reasonable to assume that the substantial damages were created by the applicant in order to enhance his position in litigation or falsely create the basis for a more serious criminal offence.

[37] Nor do I accept the respondent’s position that the applicant frustrated her attempts at access after the March 8 incident. A request for supervised access, at least in the immediate aftermath of the incident, was not unreasonable. The first attempt was frustrated, as I have indicated, by a miscommunication and the second was legitimately postponed due to the COVID-19 testing issue.

[38] As to the plan proposed for Elias as to his care and upbringing, the applicant is quite specific. He states that his work schedule, together with the assistance of Ms. Heemskerk as nanny, allows him to properly care for Elias. He sees patients Mondays through Wednesdays from 9:00 a.m. to 4:00 p.m., Thursdays from 9:00 a.m. to 12:00 p.m. and 1:00 p.m. to 2:00 p.m. and Fridays from 9:00 a.m. to 12:00 p.m.. He states that he can leave his clinic to provide care for his son at any time as he has done in the past. He typically relieves the nanny on his return home from work and she or the applicant’s parents are available to provide care if the applicant is required to work when he is on call, which is one day out of nine.

[39] The respondent proposes no plan. Her material was focused almost entirely on characterizing the applicant as an unsuitable parent and on minimizing her own negative behaviors. The details of her work arrangements were not disclosed. According to submissions, she works 12-hour shifts at a hospital. Her shift schedule was not disclosed. Likewise, the extent to which she proposes to spend time with Elias was not addressed. The evidence of Ms. Heemskerk was that she provided care for Elias as nanny both before and after the parties’ separation at the respondent’s request during times when the respondent was available for parenting time.

[40] Joint custody, as requested by the respondent, presupposes a high degree of cooperation between the parties. At this stage, the allegations made by the parties against each other call into question the fitness of the other to act in the best interests of Elias. It may be that the situation will change if the parties take steps to deal with the allegations that have been raised. In the meantime, the unproven allegations together with the non-communication undertaking are serious enough to forestall any joint custody order.

[41] As much as possible, at this interim stage, Elias’s situation needs to be normalized. He has spent most of his time since the separation with the applicant, in the premises with which he is familiar. That should continue. It is the least disruptive option. I am satisfied that the plan proposed by the applicant is consistent with Elias’s best interests. Therefore, there will be a temporary and without prejudice order that the primary residence of Elias be with the applicant.

[42] Elias needs the love and care of both parents. He should have frequent and significant contact with the respondent. Three weeks have now passed since the March 8 incident. It appears unlikely that circumstances will recur in the future that would trigger a similar loss of control on the part of the respondent: there is an existing non-communication undertaking which keeps the parties apart, and the respondent will want to avoid further misconduct which would be viewed as a negative indicator of her parenting ability. As such, it is not necessary for the respondent’s parenting time with Elias to be supervised.

[43] The proposal by the applicant for daytime access from 10:00 a.m. to 6:00 p.m. once per week is not adequate, nor is it consistent with the parties’ own experience in January and February, or with the past encouragement by the applicant for the respondent to spend more time with Elias. There should be overnight access on a minimum of one occasion per week, ideally scheduled to accommodate the respondent’s work schedule so that Elias will have time primarily with her rather than the nanny and preferably avoiding weekends when the applicant is not scheduled to work. However, based on the lack of information from the respondent about her work schedule, it is impossible to fix an access schedule at this time.

[44] I will therefore adjourn the motion as to parenting time by the respondent, allowing the parties to attempt a consensual resolution, or alternatively allowing them to contact the trial coordinator to secure an early date for continuation of the motion by teleconference on that issue and to deal with the question of costs.

[45] If the motion is to continue, the respondent may file a supplementary affidavit detailing her availability for parenting time.

[46] As to costs, the parties are also encouraged to resolve that issue consensually. If the matter must be argued, each party should file a Bill of Costs in advance to supplement their oral submissions.

[47] It may be that any face-to-face parenting time by the respondent with Elias will be delayed until the result of Ms. Heemskerk’s COVID-19 testing is known. Both parties are medical professionals and they should be able to deal with that issue in Elias’s best interest but also in keeping with existing public health protocols by which their own health and the health of others must be protected. There should be no restriction on contact by video in the meantime.

Conclusion:

[48] For the foregoing reasons, the respondent’s motion for an order for joint custody of Elias is dismissed.

[49] There will be a temporary and without prejudice order that the primary residence of Elias will be with the applicant.

[50] The issue of parenting time by the respondent with Elias and the issue of costs are adjourned to a date to be set by the trial coordinator. If either or both of those issues are settled, the trial coordinator is to be advised accordingly.

Reid J.

Date: March 30, 2020

[^1]: See the Notice to the Profession dated March 18, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/. [^2]: O. Reg. 114/99 [^3]: R.S.O. 1990., c. E.23 [^4]: Affidavit of the respondent sworn March 18, 2020 at para. 10.