COURT FILE NO.: FS-20-00015295 DATE: 20200402 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sari Herman, Applicant AND: David Kideckel, Respondent
BEFORE: Nishikawa J.
COUNSEL: Jaret Moldaver and Stephanie Yuen, for the Applicant/Responding Party Serena Lein, for the Respondent/Moving Party
HEARD: April 1, 2020 by teleconference
ENDORSEMENT
Overview and Factual Background
[1] The Respondent, David Kideckel, brings an urgent motion for an order resuming his parenting time with the parties’ daughter, O. (11 years old), as provided in the parties’ Parenting Separation Agreement dated July 28, 2014 (the “Agreement”) and as varied by the final order of J. Wilson J. dated May 15, 2017 (the “Order”).
[2] Pursuant to the Endorsement of Hood J. dated March 28, 2020, I was designated to conduct a hearing on April 1, 2020 to determine the next steps or to hear the matter. Both parties served and filed affidavits and statements of law in advance of the April 1, 2020 hearing date.
[3] Based on my review of the motion material, I am satisfied that this is an urgent motion that falls within the terms of the Chief Justice’s Notice to Profession dated March 15, 2020, as the matter relates “to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”
[4] At the hearing on April 1, 2020, I further determined that the matter was of sufficient urgency to warrant proceeding without the need for a case conference: see r. 14.(4.2) of the Family Law Rules. Due to the suspension of the court’s regular operations under the Notice, case conferences cannot be scheduled at this time. In addition, the parties agreed that in the circumstances, it would be appropriate for the motion to be heard.
[5] Dr. Kideckel seeks an order resuming his parenting time under the Agreement and the Order. He alleges that Dr. Herman has withheld their daughter, O., from him during his scheduled parenting time on at least two occasions, March 27, 2020, and again on March 31, 2020.
[6] Dr. Herman has not brought a cross-motion but seeks an order suspending the schedule provided for in the Agreement and Order until the state of emergency declaration in relation to the COVID-19 pandemic is revoked. Dr. Herman does not dispute that she has not complied with the Agreement and Order but submits that her non-compliance was justified based on her significant concerns regarding Dr. Kideckel’s adherence to health and safety measures in relation to the current COVID-19 pandemic. Specifically, Dr. Kideckel allowed O. to attend a Bat Mitzvah on March 10, 2020 and a playdate on March 14, 2020, and did not advise Dr. Herman that his current spouse and son were sick and exhibiting cold symptoms during O.’s last visit on March 17, 2020. Dr. Herman also raises Dr. Kideckel’s non-responsiveness to her inquiries about a regular medical appointment that he attends and O.’s continued contact with a live-out caregiver, among other things.
[7] Similarly, Dr. Kideckel has concerns about the fact that Dr. Herman took O. with her to her medical office on March 3 and 4, 2020, where she potentially faced greater risks to her health.
Decision
[8] The COVID-19 pandemic raises significant health concerns for everyone. The pandemic present exceptional challenges that everyone must deal with on a daily basis. Parents, who are responsible for the health and well-being of their children, justifiably seek to minimize the risks to which their children are exposed. As an allergy and immunology specialist, Dr. Herman is especially attuned to such risks. In her affidavit, Dr. Herman expresses her view that limiting movement between the two households would ensure minimal risk to O. and protect her health and safety.
[9] The response to the current pandemic, however, is not to disregard or cast aside existing agreements and orders that have been negotiated and/or considered at length, and that have been determined to be in a child’s best interests. Even in these uncertain times, court orders should be followed “unless there are compelling reasons and evidence that satisfies a court that there should be a change.” Skuce v. Skuce, 2020 ONSC 188, at para. 84. As Pazaratz J. stated in Ribeiro v. Wright, 2020 ONSC 1829, at para. 11, “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.”
[10] Parents are not permitted to disregard a court order simply because they believe they know better. This type of self-help would lead to significant chaos and disarray: Skuce v. Skuce, at para. 36. In addition, as Pazaratz J. emphasized (at para. 10) “children need the love, guidance of emotional support of both parents now more than ever.”
[11] In this case, there is no reason to suspend the terms of the Agreement or Order for the duration of the pandemic. It continues to be in O.’s best interest to continue a close relationship with both parents, as recognized by the parties in their Agreement. Many routines to which children are accustomed, such as school and extracurricular activities have been completely disrupted. It is important to maintain the parenting schedule to ensure a sense of stability and that O. has the support of both of her parents.
[12] Parents will inevitably have differences of opinion as to how best to protect their children’s health and well-being. The current situation is especially challenging because the health and safety recommendations of public health authorities have been changing on a weekly, and sometimes daily, basis based on the best available information at the time. For example, when O. went to work with Dr. Herman and attended the Bat Mitzvah with Dr. Kideckel, the World Health Organization had not yet declared a pandemic and public health protocols did not yet include the social distancing requirements that came into effect a few days later. Conduct that might not have seemed risky at the beginning of March is viewed differently now.
[13] Nothing in the evidentiary record suggests that either party is unable or unwilling to adhere to the increasingly strict health and safety protocols public health authorities have announced to control the spread of the virus. Since they have been put into place, both parents have been following those protocols and minimizing the risks to O. Dr. Kideckel did not permit O. to attend two other Bat Mitzvahs to which she was invited. He is working from home and no longer employs the live-out caregiver. Needless to say, no playdates are taking place. Similarly, Dr. Herman has not brought O. to her medical office and, since March 13, 2020, is no longer seeing patients in person. She undertakes not to take O. to her medical office for the duration of the COVID-19 pandemic.
[14] In his reply affidavit, Dr. Kideckel has provided information regarding his appointment for a Remicade infusion on April 25, 2020 and the safety protocols in place at the clinic he attends. According to the safety protocol, among other measures, all patients are screened and are required to wear surgical masks while on the premises, and only one patient is infused a time. Based on the practices in place and the fact that the clinic is a medical provider, there is no reason to believe that either the clinic or Dr. Kideckel would not follow the proper safety protocols. See: Zee v. Quon, (Court File No. FS-16-412436, March 27, 2020) at para. 34.
[15] The Order shall be complied with in all respects. Notwithstanding the Dr. Herman’s non-compliance, I am not prepared to grant an order authorizing the police to enforce the order, as requested by Dr. Kideckel. At the hearing, Dr. Herman’s counsel advised that she is prepared to comply with the terms of the Agreement and the Order. It was also reiterated that court orders remain in force until varied or set aside and must be respected.
[16] The evidentiary record shows that the parties have had challenges communicating and co-operating despite the term in their Agreement which requires that they “at all times maintain a reasonable and flexible position respecting custody/access arrangements for O. and at all times the best interests of O. will prevail.” At the hearing, I emphasized the necessity for parents to behave in a responsible, reasonable and cooperative manner. This is expected at all times of parents with shared parenting responsibilities, but especially during a pandemic when cooperation is necessary to minimize risks to the child’s, and others’, health and safety. Now is not the time to be evasive, confrontational or strategic; what is needed is flexibility, transparency and compassion.
[17] The Applicant did not bring a cross-motion but sought certain conditions in the event that the existing arrangement was continued. The Respondent was willing to accept some, but not all, of the conditions. Specifically, Dr. Herman sought an order that O. remain in her custody in the event that the city or province declares a “lockdown.” It would be premature to order such relief at this time, as it is unclear whether such an order would be made and what that might entail. In the event that a situation akin to a “lockdown” is ordered, the parties may contact the Family Scheduling Office for a teleconference with me, without the need to bring a further motion.
[18] Given the level of conflict between the parents and their difficulty communicating, and given the exceptional public health crisis, I find it appropriate and consistent with rr. 1(8) and 2(2) of the Family Law Rules to order further terms in O.’s best interests and to avoid further potential conflict. Accordingly, an order is granted on the following terms:
(i) Granting the Respondent leave to bring this motion; (ii) Validating service of the motion materials; (iii) Requiring that the parties abide by the terms of the Agreement and the Order; (iv) Requiring both parties to, at all times, adhere to the orders, measures, and protocols relating to COVID-19 issued by all levels of government and public health authorities in Canada, Ontario and Toronto; (v) Requiring both parties to adhere to social distancing practices including refraining from making all but essential trips to the supermarket, pharmacy etc. and from gathering with non-family members; (vi) Requiring both parties to allow O. to have her mobile phone available to her for contact with the other party, including during the Jewish holidays; (vii) Requiring both parents to immediately inform the other parent in the event that they, or a member of their household is experiencing any of the symptoms of COVID-19 and/or has come into contact with anyone who has the virus or who is symptomatic. The parties will cooperate to agree to adjust the parenting schedule as necessary and appropriate in the circumstances; and (viii) Requiring the parties to cooperate and arrange for make-up parenting time on mutually convenient dates in the event that either party misses parenting time with O. as a result of the foregoing.
[19] Since counsel for the parties advised that they would arrive at an agreement on reasonable make-up time for Dr. Kideckel’s missed parenting time in March 2020, no order is made regarding make-up time.
[20] As provided in the Endorsement of Hood J., the outcome of any motion is an order of the court enforceable by law from the moment it is released. Counsel may also forward a draft order consistent with the terms of this Endorsement to me through the Family Scheduling Office.
[21] The parties requested an opportunity to make submissions on costs because of offers to settle. Given the court’s limited resources at the present time, the parties are strongly encouraged to agree on costs. Costs should not be complicated, as this motion proceeded within a matter of days. If the parties are unable to agree, they shall exchange cost submissions of no more than two pages, not including their bills of costs, by email within 14 days of this decision. Costs submissions are to be submitted to me through the Family Scheduling Office. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs.