DATE: 20200331
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Geannine Balbontin, Applicant
AND
Francis Luwawa, Respondent
BEFORE: The Honourable Justice D.A. Jarvis
COUNSEL: Theodora Oprea, for the Applicant
Francis Luwawa, Self-Represented
HEARD: Electronically
REASONS FOR DECISION
[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].
[2] This matter was referred to me as I have dealt with the outstanding parenting issues between the parties. The applicant shall be referenced as “the mother” and the respondent shall be referenced as “the father”.
[3] The following materials are before the Court:
(a) A Form 14B Notice of Motion by the mother dated March 29, 2020 to suspend the father’s access to the parties’ 3-year-old daughter until he provides evidence of compliance with recent COVID-19 protocols;
(b) An unsworn affidavit from the mother dated March 29, 2020 to which are attached several exhibits. These exhibits include a copy of a temporary Order by Bennett J. dated July 29, 2019 (“the Order”) providing that the child shall primarily reside with her mother and setting out times when the child will be with her father; exchanges of emails between the parties; and, between a lawyer recently retained by the mother and the father. The Order also contained a reciprocal non-contact provision between the parties and members of the other’s family;
(c) An affidavit of service of (a) and (b) by email on the father sworn on March 29, 2020. Email service of court documents was allowed by Order on October 23, 2019;
(d) An unsworn affidavit from the father dated March 30, 2020 to which are attached several exhibits comprising letters between the parties’ former lawyers in 2016, photographs of the child at play and at home, represented to have been taken on March 11, 2020, and an email chain between the parties dealing with a request by the mother in early February to change a March 25, 2020 visitation date;
(e) An unsworn affidavit of service of (d) by the father. Reference to that affidavit was made by the mother when this matter was argued; and
(f) Where needed a translation of the husband’s material from the French language.
[4] Having reviewed the mother’s material on March 29, 2020 before receiving anything from the father I directed that a teleconference proceed today before the child’s next time with her father on April 1, 2020 and that the father file any material in response by 10:00 a.m. this morning. That was done.
[5] Pursuant to paragraph B. 6 of the Chief’s Notice dealing with the procedure for bringing an urgent motion, the parties participated in the teleconference and were sworn to the truth of the contents of their affidavits when the teleconference began. The father delivered his material in French. I directed that it be translated (for the Court’s benefit as the wife’s lawyer is bilingual) and that a translator be made available for the father since he had requested that assistance in the past, although he was able to converse in English without much difficulty in the last two court appearances before me and had confirmed then that he had no difficulty reading and understanding English. A translator participated in the teleconference in any event, was sworn and translated for the father.
[6] The parenting dispute between the parties has been long-standing. It is what may be described as high conflict and has been conferenced but not yet scheduled for trial. On February 26, 2020 I ordered that motions brought by each party be heard as a Long Motion on April 23, 2020. Directions were given. It is uncertain whether that date will be available due to the Chief’s Notice.
[7] The nature of the urgency for the relief sought and what child-focused behaviour of parents should be expected are well-expressed by W.L. MacPherson J. in Douglas v. Douglas[^1] released March 25, 2020 with whose view I concur:
[8] The COVID-19 pandemic is unprecedented. The situation changes daily, if not hourly. To address the risks posed by the virus, as those risks are known at any particular time, government authorities and public health officials issue directives to address the perceived risks.
[9] There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child’s physical well-being, but also their emotional wellbeing. Total removal of one parent from any child’s life must be exercised cautiously.
[10] This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court. However, the court must take guidance from the Chief’s notice that confirms that all court operations are suspended with the exception of those that are urgent and emergency matters. The Chief’s notice defines such matters in the context of family files to be relative to “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”
[8] In Ribeiro v. Wright[^2] Pazaratz J. contextualized the COVID-19 pandemic for parenting cases where there are court orders or parenting agreements:
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 – including strict social distancing.
In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
[9] Pazaratz J. also highlighted what the court will expect of parents:
- Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. (bolding added)
[10] It is impossible to disagree with any of these observations.
[11] All levels of government in Canada, national, provincial and local 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. In Ribeiro Pazaratz J. outlined an eminently thoughtful approach to urgent parenting motions in these most abnormal of times:
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
[12] The following evidence is relevant:
(a) The Order provided that the child spend time with her father every Wednesday from 10:00 a.m. to 2:00 p.m. and on alternating weekends on Saturday and Sunday from 10:00 a.m. to 4:00 p.m. Access exchanges were to take place at a local police station;
(b) On February 10, 2020 the mother asked the father to change the child’s regularly scheduled Wednesday March 25, 2020 time with him because she planned to be out of the country. She proposed that the date be rescheduled to any other date convenient to the father. He declined, commenting that the mother’s travel plans did not have priority over his scheduled time with the child;
(c) On March 11, 2020 the father sent the mother photographs of the child in a playground;
(d) On March 13, 2020 the mother emailed the father to express her COVID-19 concerns and asked the father to observe the then extant public health notices about social distancing. The email was polite and asked the father to ensure that, like she, he was being pro-active in safeguarding the child and other members of his family. The mother advised that she had cancelled her planned vacation;
(e) The mother was concerned because the father lived in a three-bedroom apartment with two other individuals and would attend pick-up of the child with another mother and her child who were members of his family;
(f) The father did not respond to the mother’s email because he didn’t consider it important to respond to what he knew already;
(g) On March 14, 2020 the mother provided the father with face masks for the child, hand sanitizer and disposable gloves. According to the mother, the father demonstrated little interest in using, in particular, a face mask for the child. He says that there was no public health rule or guideline mandating face mask use;
(h) On March 25, 2020 the mother emailed the father before the child’s time with him to repeat her concerns and indicated that she was prepared to work with him to develop an emergency action plan in the event that the COVID-19 crisis worsened and risked impacting the child’s time with him. She asked for a response;
(i) The father did not acknowledge receipt of the mother’s email;
(j) On March 27, 2020, the mother raised again her concerns in an email to the father and wanted some assurance that public health-recommended safety measures were being followed by the father or she might have to suspend access. She advised that she had been self-isolating with other members of her family for fourteen days except for child exchanges and grocery purchasing. The email was polite. She indicated that without some answers from the father about her concerns she would not bring the child to the police station the next day. The mother told the court that her use of “self-isolating” was not due to any member of her family having come in contact with any person suspected of, or who had contracted, COVID-19 or recently arrived from outside of Canada but because she had personal health issues;
(k) The father finally answered the mother, telling her that she had “nothing to teach [him] about Covid-19”, there was no public health requirement that the child wear a mask and that if the child wasn’t presented at the police station at the scheduled time pursuant to the Order then he would report that “to the judge”;
(l) The mother did not bring the child to the police station on Saturday, March 28, 2020. The father attended and had an officer contact the mother. She did not bring the child;
(m) The mother retained her current lawyer. Ms. Oprea later emailed the father on March 28 and set out certain questions seeking assurances from the father about his COVID-19 compliance impacting the child when with him; and
(n) The father responded to Ms. Oprea. Among other things, he said that he was acting as a responsible father, that he had never disobeyed any law affecting the child. He confirmed that the only people joining him and the child were other members of his family who had also shared in the child’s visits. He stated that he would not agree to make any change to the terms of the Order unless ordered by the court.
[13] The mother asked for the following information/confirmation:
(a) Where he is taking the child during access visits;
(b) That he will not take the child to a playground;
(c) That he practise social distancing;
(d) That he comply with public safety directives regarding COVID-19 and the use of disinfectants;
(e) Whether he or any of the roommates with whom he resides are still working, and whether he or any of his roommates are currently under self-isolation and/or quarantine;
(f) Whether his roommates are practising social distancing;
(g) Whether his roommates or any other individuals are present during his access visits with the child.
[14] The father provided little or none of this information to the mother, or to this court.
[15] Several matters are clear:
(a) In the context of the current pandemic, the mother raised legitimate concerns about the child’s third-party exposure. The father told the court that the collage of pictures that he sent to the mother on March 11 comprised at least three taken in a playground setting that the father said was almost deserted. This was before more stringent public health guidelines were issued. The father acknowledged to the Court that third parties accompanied the child’s visits with him although the duration and manner of those continuing interactions was not made clear;
(b) The father ignored the mother’s concerns until after her third email in which she informed him that she would not be bringing the child to the access exchange location. Rather than engage her and her lawyer in a good faith effort to communicate and allay those concerns, the father insisted that he knew his rights and obligations and would ensure their protection;
(c) Despite the mother’s frequent requests to collaborate on a mutual approach to deal with COVID-19 developments, the father told the Court that the mother was simply looking for a way to end the child’s time with him. He said there was no evidence of risk;
(d) The requests made of the father were respectful and child-focused. While there is merit to the father’s distrust of the mother and some of her concerns (such as using a face mask) unsupported by the authorities, his refusal to engage with her where the priority should be ensuring the safety and well-being of the child is unacceptable.
[16] There is no doubt that the father loves his daughter but what the mother asked of him was not unreasonable. He should be given the opportunity to respectfully and, to use the language of Pazartz J. in Ribeiro (in para. 11(b) above), specifically and absolutely assure the mother (and this Court) that current COVID-19 safety measures will be diligently followed. He can do that by affidavit.
[17] The following is ordered:
(a) Paragraphs 1-3 of the Order are suspended until further Order;
(b) The father’s access shall be reinstated once he files with the court an affidavit that answers the mother’s concerns and provides the information set out in paragraph [13] above to the court’s satisfaction;
(c) The father’s affidavit shall be served on the mother, filed electronically with the Court and forthwith brought to my attention;
(d) The father’s affidavit may be unsworn or sworn. In either case, Court Administration shall schedule a brief teleconference, which conference shall include the mother and her lawyer, the purpose of which will be, if necessary, to have the father’s affidavit sworn and to rescind the suspension of the child’s access with him. A French interpreter shall be arranged by the administration.
[18] A parent’s failure to communicate and meaningfully co-operate where a child’s safety and well-being are involved is a failure to parent, especially in the current environment.
[19] In the circumstances of the COVID-19 emergency, these Reasons for Decision are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.
[20] Approval of this and any later Order dealing with the subject matter of these Reasons is dispensed with: the parties may submit formal Orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of their release.
The Honourable Justice D.A. Jarvis
Released: March 31, 2020
[^1]: March 20, 2020, Ottawa, 684/19.
[^2]: March 24, 2020, Hamilton, 1199/19.