Court File and Parties

COURT FILE NO.: 1765/15 DATE: 2020 04 03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Feldman, Applicant AND: Sherri-Lynn Knight, Respondent

BEFORE: Chozik J.

COUNSEL: Michael Feldman, Self-Represented Alexandra Cohan, Counsel for the Respondent

HEARD: In Chambers

Endorsement

[1] AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 18, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed. See the Notice to the Profession, dated March 18, 2020 available at: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[2] Electronic materials were filed through the Courthouse email address: SCJHaltontrialoffice@ontario.ca. Upon the resumption of court operations, all materials will be duly filed in the physical record at the courthouse.

[3] At this point I have received and reviewed the following:

1. The Respondent’s Notice of Motion dated March 27, 2020;
2. The Affidavit of the Respondent, sworn on March 26, 2020 including sworn exhibits A-G;
3. The Affidavit of Service sworn March 27, 2020;
4. The Applicant’s unsworn Affidavit submitted to the Courthouse by email on April 1, 2020;
5. Screen shots of correspondence relied upon by the Applicant in support of his affidavit, including a letter from Manulife.

[4] At issue on this motion is the Respondent’s access with the child, Alicia Mae Hope Knight, born on October 10, 2012.

[5] Alicia’s primary residence has been with the Applicant since 2016. On August 4, 2016 Fitzpatrick J. ordered sole custody and primary residence of Alicia to the Applicant on an interim basis. The Respondent was to have supervised access to Alicia at a supervised access centre. This occurred until March 13, 2019 when I ordered that the Respondent have unsupervised access to Alicia every other weekend from Saturday at 10:00 am until Sunday at 6:00 pm, commencing March 16, 2020.

[6] On this motion, the Respondent asks for an order finding that the Applicant is not in compliance with my order dated March 13, 2019 because he has withheld access to Alicia. She seeks an order that her access to Alicia recommence immediately and that she be afforded two make-up weekends due to the Applicant withholding access.

[7] In her Affidavit, the Respondent sets out that the Applicant has unilaterally refused her access to Alicia as ordered by this court since March 21, 2020 due to COVID-19. She asks that the motion be heard on an urgent basis.

[8] The Applicant, in his materials, has not denied that he has been withholding access to Alicia. He has not provided any explanation for this or addressed the issue on this motion at all. Instead, in his materials he seeks sole custody of Alicia based on the Respondent’s past behaviour and failure to pay the “proper” amount of child support.

[9] At this time of the pandemic, only the most urgent matters can be heard. That requirement is set out in the court’s Notice to the Profession cited above. Under that Notice, urgency in non-child protection family law matters is not defined but it is described as including:

(a) requests for urgent relief relating to the safety of a child or parent (e.g. a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home; (b) urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child; (c) dire issues regarding the parties’ financial circumstances including for example, the need for a non-depletion order.

[10] This court considered the test for urgency in this time of pandemic in Thomas v. Wohleber, 2020 ONSC 1965. At para. 38, Kurz J. found that the following factors are necessary to meet a high threshold:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describe the manner in which the concerns reaches the level of urgency.

[11] As Kurz J. further noted, only the most urgent cases can continue to be adjudicated by the court in these days of crisis.

[12] In my view, this matter need not proceed as an urgent motion at this time. There is an existing parenting order. There is a presumption that all orders should be respected and complied with. There is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child. The court order is clear: the Respondent is to have access to Alicia every other weekend from Saturday at 10:00 am until Sunday at 6:00 pm, and that such access was to have commenced on March 16, 2020. When the Applicant unilaterally withholds access, he is breaching that court order. Such disregard of an existing court order will not be looked at favourably by the courts once normal court operations resume.

[13] Email correspondence between the parties confirms that the Applicant is withholding access due to concerns that the Respondent will not comply with the directives from public health officials with respect to COVID-19. However, his concerns in this regard are not borne out any evidence. Nor are his concerns in this regard a justification for breaching an existing court order.

[14] As Pazaratz J. held in Ribiero v. Wright, 2020 ONSC 1829 (Ont. S.C.J.) if a parent has concerns that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion but they “should not presume that the existence of the COVID-19 crisis will automatically result in suspension of in-person parenting time” or that “raising COVID-19 considerations will necessarily result in an urgent hearing”. I agree with Justice Pazaratz that the parent initiating an urgent motion to suspend access due to COVID-19 would be required to provide specific evidence or examples of behaviours or plans by the other parent which are inconsistent with COVID-19 protocols. The parent responding to such an urgent motion would be required to provide specific and absolute re-assurance that COVID-19 safety measures will be meticulously adhered to, including social distancing, use of disinfectants, compliance with public safety directives, etc.

[15] In the absence of an urgent motion by the Applicant to suspend court ordered access, access is to take place as set out in the Order dated March 13, 2020. That Order stands. The Respondent is to have access to Alicia as ordered, every other weekend from Saturday at 10:00 am until Sunday at 6:00 pm. The Applicant is obliged to comply with the existing court order. He has offered no excuse for his failure to do so at this juncture.

[16] Since the Applicant has unilaterally withheld access to Alicia, he must provide make-up time and ensure that the Respondent has two consecutive weekends effective immediately (i.e. this Saturday April 4, 2020 at 10:00 am to Sunday April 5, 2020 at 6 p.m. and Saturday April 11, 2020 at 10:00 am to Sunday April 12, 2020 at 6 p.m.) to make up for this lost time. Alternating weekend access is to resume after this make time, with the Respondent having access to Alicia on Saturday, April 18 to Sunday, April 19, 2020 at per the Order dated March 13, 2020 and thereafter alternating weekends.

[17] On the record before me, there is nothing from which I could conclude that the Respondent is unable to comply or unwilling to comply with the well-publicized directives from government and public health officials with respect to Alicia. Children’s lives and vitally important family relationships cannot be placed “on hold” indefinitely without risking serious long-term harm.

[18] The Respondent’s request for the hearing of an urgent motion is dismissed, without prejudice.

[19] No costs are ordered for this motion, without prejudice to the Respondent should the Applicant continue to withhold access and a further motion is required as a result.

(“ Original signed by ”) Chozik J. Date: April 3, 2020