Court File and Parties

COURT FILE NO.: FC-18-192 DATE: 20200402 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Geoffery David Little, Applicant AND: Kristina Elizabeth Cooper, Respondent

BEFORE: McDermot J.

COUNSEL: Applicant unrepresented Annette Goldberg-Schreiber, for the Respondent

HEARD: April 1, 2020

Endorsement

[1] This was the return of an urgent motion originally considered by me on March 18, 2020. The Respondent Mother brought a motion to suspend access to the Applicant Father of the parties’ daughter, Ava-Mai who is nine years old. Because of the Covid-19 pandemic and the subsequent closure of the courts, this matter was heard by way of teleconference. Ms. Cooper and her counsel were present on the telephone and Mr. Little represented himself.

[2] The Respondent Mother based her motion on a claim that the child is scared of her father because her father mistreats her. She states that after an unsupervised visit with the Applicant Father which took place on March 7, 2020, Ava-Mai complained that the “Applicant had been pushing her around, shoved her to the ground and pushed her chest into a wall.” [1] She says that Ava-Mai does not want to see her father and that she reported the assault against Ava-Mai to the police and the Children’s Aid Society.

[3] Mr. Little says that this is nothing but what he referred to as “coercion” [2] by the Respondent Mother. He says that Ava-Mai enjoys the visits that she had with him and his fiancé. He denies laying hands on Ava-Mai and notes that the police have not laid charges or taken any steps other than to suggest that an access visit scheduled for the following weekend not take place. [3] Finally, there is nothing from the Children’s Aid Society, which was previously involved in the parties’ previous litigation, to indicate that there are protection issues in this matter.

Respondent’s Conduct

[4] This was a motion brought without notice after the courts were closed during the Covid-19 pandemic. I did not have the file before me; nor did I have the endorsement record. I was therefore not aware that the Respondent Mother had previously tried to suspend access without notice shortly before this motion. On March 13, 2020, she brought a motion to suspend access without notice to the Applicant. She said that there was a police incident report without outlining what that report said. She said that Ava-Mai did not want to go on access visits and that Ava-Mai had “alleged physical abuse” during the March 7, 2020 access visit. She said that Ava-Mai had been shoved to the ground at one point, but did not specify when this had occurred.

[5] That motion came before me before the courts closed, on March 13, and I dismissed it and ordered that Mr. Little be served with the motion if it was to return to court. I determined that there was insufficient evidence of risk of harm to the child and that the child’s views and preferences, which the motion was largely based upon, did not warrant court intervention without notice to the Applicant Father.

[6] Instead of doing what I directed, the Respondent brought a second motion without notice for the same relief. She provided the same facts, but with more specificity about when the alleged assault took place. I did not have my previous endorsement and granted the order without being aware of my previous endorsement. As a result, I made inconsistent orders on the same motion.

[7] When I asked the Respondent why she brought a second motion without notice contrary to my endorsement, she said that she could not read my writing in the March 13 endorsement, and also says that she was told by court staff to just try again. That simply does not ring true. I am sure that the Respondent Mother, who appeared to be an intelligent woman, wanted to know why I had dismissed her motion and would have made best efforts to read the reasons that I gave. I mentioned on more than one occasion in that endorsement that the Applicant needed to be served and I find it unbelievable that Ms. Cooper could not read any of the endorsement. Although I understand that my writing can be difficult to understand, court staff will type out copies of endorsements on request where a party has difficulty in reading a judge’s writing and the Respondent Mother failed to disclose the efforts she made to understand and review the endorsement. Finally, I do not believe that court staff would tell the Respondent to try to obtain a second court order without notice where it had been dismissed the first time around.

[8] More importantly, the Respondent failed to give me crucial information about the Applicant. She failed to disclose that the Applicant had satisfied the provisions of paragraph 6 of the June 21, 2019 order of Graham J., which permitted the Applicant to have unsupervised access if he met certain conditions. In particular, she failed to disclose the fact that the Applicant had completed anger management in complying with the Graham J. final order from June, 2019. That is important because the Respondent’s material focused on the Applicant’s anger issues towards herself and the child. She also failed to disclose that the parties had appeared before Christie J. to address an issue where the Applicant’s dog had jumped on Ava-Mai, resulting a torn lip and scratching and that access was ordered on that date on the Applicant’s birthday.

[9] It is trite that a party appearing before the court without notice to the other side has a positive duty to place all material facts before the court, even those facts which are contrary to the parties’ interest, failing which that order may be set aside: see Cadas v. Cadas, [2013] O.J. No. 2054 (S.C.J.). The rationale behind this is clear: the other side is not present to provide both sides of the story and the court therefore relies solely upon the veracity of the claimant’s materials. This is especially important at present when the entire court file is not available to the Justice considering the matter. It is important that the court receive accurate information even where the responding party is not served so that a fair and reasonable order can be made by the court, particularly if it involves the best interests of a child.

[10] It was clear that the Respondent’s materials originally before me lacked reliability. She failed to disclose essential facts that were otherwise not available to me because of the Covid-19 crisis and the closure of the courts. She had a motion dismissed and brought a second motion without notice for the same relief notwithstanding my direction that the Applicant be served.

[11] I therefore set aside my order of March 18, 2020.

Merits of the Motion

[12] Ms. Goldberg-Schreiber urged me to look beyond her client’s failure to adequately disclose facts to the court, and asked me to make an order suspending access based upon the risk to the child as disclosed by the Respondent Mother.

[13] Ms. Cooper says that there is a risk to the child from the Applicant’s anger issues. She repeats in her reply affidavit that the Applicant assaulted Ava-Mai during the March 7, 2020 access visit. She says that Ava-Mai does not want to go on access visits, and is scared of the Applicant.

[14] Under s. 24(2) of the Children’s Law Reform Act, custody and access issues are to be determined according to the best interests of the child. Obviously, if a child is being assaulted or physically hurt during access visits, the court must act in the best interests of the child. The child’s views and preferences are also important to a determination where those views and preferences can be accurately assessed.

[15] However, it is also presumed that extensive time sharing between the child and a parent is in that child’s best interests. There is nothing more important to a child of separated parents that she have a meaningful relationship with both of her parents, and it is obviously difficult for the child to have a meaningful relationship where she is having no contact with a parent.

[16] I note as well that the Respondent is not giving the Applicant a lot of latitude in the access she is suggesting that he receive. The order originally provided that Mr. Little have access to Ava-Mai supervised by his parents. The Applicant has now graduated to unsupervised access under the final order in this matter.

[17] However, the Respondent does not agree with supervised access continuing with the Applicant’s parents because she says that she cannot trust them. She suggests that access take place at a supervised access centre, but they are all closed because of Covid-19. If I grant the Respondent’s motion, Mr. Little will have no access to Ava-Mai whatsoever for an indefinite period of time, as it is unknown when the court will be available to address these issues again or when supervised access centres will re-open.

[18] I also have already commented on the veracity of Ms. Cooper’s materials in this matter. She has left out crucial facts essential to the determination of the child’s best interests. Mr. Little has completed anger management, and has provided correspondence from his doctor confirming that he has received sufficient treatment to satisfy the court as to the mental health concerns cited in the original court order. Mr. Little’s evidence, that he did not use physical discipline or shove the child, conflicts with that of Ms. Cooper. I am also extremely concerned that Ms. Cooper simply does not want the Applicant to have unsupervised access because she is convinced that a leopard does not change his spots, and because she suffered abuse during the marriage, a fact that Mr. Little acknowledges in his materials when he says that he made poor choices in the past. I believe that he is making an accurate statement when he says in his affidavit:

The applicant will admit that he was not always a very good person but he has changed and grown up and he believes that the respondent is still convinced he is the same person he was 10 years ago. [5]

[19] I also take into account the fact that the Applicant receives limited access, and he does not seek to increase it. He only sees the child on Saturdays and Sundays every second weekend without overnights. He does not seek an increase in this access. There is little risk when access is limited and that lack of risk should be made clear to the child by the Respondent.

[20] Finally, this is a nine-year-old child, and her input, while important, is not determinative of the case, especially under the circumstances and the fact that the evidence on the child’s views and preferences is in conflict in the various affidavits filed by the parties.

[21] I find that the evidence is insufficient to warrant a suspension of access in the present case and that it is not in Ava-Mai’s best interests to do so. The Respondent’s motion is therefore dismissed.

Covid-19

[22] Beyond the merits of a motion, we are discussing access during the Covid-19 pandemic. This is an age of social distancing and isolation. No one wants a child to be infected with Covid-19, a particularly nefarious and contagious affliction and access obviously involves a child travelling between two households resulting in obvious risks.

[23] Neither party raised Covid-19 as an issue in their materials. In these very unique times, the court must enter into an inquiry as to whether there would be compliance with the restrictions that the virus calls for, including social distancing, hand sanitizing, people at risk and small gatherings including home isolation: see Ribeiro v. Wright, 2020 ONSC 1829 at para. 21.

[24] Because access to the Applicant was in issue, and because these parties do not communicate with one another I conducted a short inquiry into Covid-19 issues. I swore Mr. Little as a witness and he gave evidence as to the situation in his household concerning Covid-19 and the measures his family was taking concerning the pandemic. Ms. Goldberg-Schreiber was given the opportunity for a short cross-examination of Mr. Little. I did not do the same with Ms. Cooper as the child resides in her household, and the issue before the court was not a change in primary residence, but only access to the Applicant Father.

[25] Mr. Little testified that he is a construction worker and that he had been at home for the past two to three weeks. He is staying at home, and does not leave the home other than for necessary errands to purchase food or essential supplies. He lives with his fiancé, who works in a group home and cares for a group of five or six residents. The group home is locked down, and no visitors are permitted at her place of work.

[26] Mr. Little’s fiancé has a six-year-old child and she shares custody with the child’s father. Until the pandemic, the child went between the two households on a week about basis, but since then, Mr. Little’s fiancé and her former partner have agreed to put things on hold to ensure the safety of their child. That boy has been in the care of his father for the past three weeks, and he is due to come to Mr. Little’s household this weekend for a three-week period. It is significant to me that the father of that child is content to have his son spend time at Mr. Little’s home as I am advised that he has a small child who has health issues making him vulnerable to a disease such as Covid-19. In other words, if someone had a reason to withhold time sharing, it would be the father of Mr. Little’s stepson because he has a vulnerable individual in his home; he is not doing so, presumably because he assumes Mr. Little’s home to be a safe place.

[27] I was impressed by the fact that Mr. Little’s fiancé and her former partner were able to work out a plan for the safety of their child during this very difficult time. That is exactly what Pazaratz J. suggested that the parties do in these situations if at all possible: see Ribeiro at para. 23. Unfortunately, it is apparent that the Applicant and the Respondent in this case were unable to negotiate this issue as the Respondent was intent upon severely limiting access to the Applicant if possible.

[28] The evidence of the Applicant Father convinced me that he was aware and cognizant of the following:

a. He was aware of the need to isolate himself and remain, if possible, in his residence; b. He was aware of the need to socially distance, if possible, in public; c. Although his partner worked in a group home, he was aware of the issue of whether this was an “at risk” occupation and was able to address the conditions within that group home including whether visitors were permitted at that home; d. He was aware of the need for cleanliness and to hand sanitize often; e. He was aware of vulnerable people within his family constellation and was aware of the fact that these individuals’ needs were something to be addressed in the planning of access visits. In particular, his fiancé was able to negotiate changes in the access schedule involving her child and former partner in order to address Covid-19 issues.

[29] I found Mr. Little’s approach to Covid-19 to be thoughtful and mature. He knew the restrictions on life during the pandemic and addressed with those restrictions. I am convinced that he will do his best to ensure the safety of Ava-Mai during his visits with her, and will not put her at risk from Covid-19. If the former partner of Mr. Little’s fiancé is convinced that the household is safe, I am as well.

[30] Ms. Cooper suggested that, because of Covid-19, no access take place. She complained about Mr. Little’s stepson going back and forth, but did not seem to be aware that his fiancé had lengthened the period of time sharing in her custody arrangement to address Covid-19. I found the Respondent’s attitude to be self-serving in light of her position that no access whatsoever is the best solution at present. I also note that several cases have confirmed that Covid-19 is, without more, not a basis for restricting or suspending time sharing or access to a child: see Ribeiro, supra, at para. 10 and Chrisjohn v. Hillier, (London, Ontario, March 26, 2020) at para. 11.

[31] I am therefore going to dismiss the motion to suspend access. The issues between the parties may be next discussed by the parties before the Dispute Resolution Officer in the context of the Motion to Change proceedings.

[32] I am going to confirm that access is now unsupervised as there was no issue that Mr. Little has now complied with paragraph 6 of the order of Graham J. dated June 21, 2019.

[33] I am going to request the Office of the Children’s Lawyer to become involved as both parties have put Ava-Mei’s views and preferences in issue in this Motion to Change. The OCL has confirmed that they are in a position to provide limited services where necessary.

Order

[34] There shall be a temporary order as follows:

a. My order of March 18, 2020 is set aside. b. There shall be a temporary variation of paragraph 5 of the order of Graham J. dated June 21, 2019 to remove the words from the last line of that paragraph, “supervised by the paternal grandparent.” c. The Respondent’s motion is otherwise dismissed. d. There shall be an order requesting involvement of the Office of the Children’s Lawyer in this motion to change.

[35] If either party requests, they may make written submissions as to costs of this motion, the Applicant first and then the Respondent on a ten-day turnaround. Costs submissions shall be no more than three pages in length not including offers to settle or bills of costs. Submissions for costs to be filed through the generic email at the filing office (Barrie.SCJ.courts@ontario.ca).

[36] Because of the Covid-19 emergency this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order or judgement. Once the Court resumes normal operations a copy of this order shall be prepared and filed with the court. This order is an effective and binding order through its issuance under my electronic signature and email to the parties by the judicial assistant.

Justice J.P.L. McDermot

Date: April 2, 2020

[1] Affidavit of the Respondent sworn March 31, 2020, para. 7. [2] Alienation? [3] Ms. Cooper says that the police “cancelled” the access visit. They did not have the power to do so as there was no court order in effect suspending access and I had already dismissed the Respondent’s motion to suspend access the day before that visit was to take place. There was no evidence as to whether Ms. Cooper brought my order dismissing her first without notice motion to the attention of the police. I therefore assume that the police only suggested to the Applicant that he not exercise his access. [4] R.S.O. 1990, c. C.12 [5] Applicant’s affidavit sworn March 25, 2020, para. 13.