Court File and Parties
COURT FILE NO.: FS-12-11977-01 DATE: 20200407
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Georgina Evanthia Vasilodimitrakis Applicant – and – Michael Wayne Homme Respondent
Counsel: Sarah A. Weisman, for the Applicant Richard M. Gordner, for the Respondent
HEARD BY CONFERENCE CALL: April 1, 3, 6, 2020
Reasons on Motion
BONDY J.
A. Introduction
1) Background
[1] The applicant Georgina Evanthia Vasilodimitrakis ("the applicant" or "the mother") is 56 years of age, and the respondent Michael Wayne Homme ("the respondent" or "the father") is 57 years of age. The parties resided together from 2005 until 2010. They have one biological child, Mileena Evanthia Homme-Vasilodimitrakis ("Mileena") born April 13, 2006.
[2] By order of Hebner J. dated March 31, 2020, two motions were approved to be heard in this matter on an emergency basis.
[3] The first was a motion brought by the applicant mother to suspend the respondent father's access to Mileena for three weeks due to Mileena’s unusually high risk from the Covid-19 virus. The applicant mother also seeks an automatic review of that suspension on April 17, 2020, and any other date ordered by the court. In addition, the applicant seeks an order that during the suspension, the respondent's access be by way of video access. Finally, she seeks an order that any missed access be made up prior to December 31, 2020.
[4] The second motion was the respondent father's cross motion to continue access in accordance with the existing court order.
2) The Issues
[5] By way of background, Mileena suffers from "oligoarticular juvenile idiopathic arthritis" and as part of that condition, has developed "uveitis" which has affected her eyes. As a result, she is required to take medications which include, without limitation, a weekly injection of methotrexate. Methotrexate suppresses her immune system.
[6] Mileena is under the care of nine different doctors as a result of these conditions.
[7] There is consensus that Mileena is medically fragile and does have an unusually high risk to Covid-19 as a result of her conditions.
[8] There is also consensus that Mileena must "stay home".
[9] It follows that the very narrow issues for determination are whether either home is safer for Mileena than the other, and if not, whether the act of transporting Mileena to and from the two homes for the purpose of facilitating her access with her father presents an additional risk to her from the Covid-19 virus.
B. Analysis
1) The Status Quo
[10] On November 20, 2014, Gates J. made an order granting the applicant mother custody with supervised access to the respondent father on alternate weekends.
[11] The applicant mother has been the custodial parent ever since. The applicant mother, Mileena, and the applicant mother's 93-year-old father all live together in the same home.
[12] On August 6, 2015, Carey J. made an order confirming the applicant mother's custody but giving the respondent father unsupervised access as follows:
a. Alternate weekends from Friday at 6 PM to Sunday at 6 PM (respondent shall return the child on Saturday at 4 PM for her injection of methotrexate and he shall give the child her folic acid pill each Saturday at 4 PM). b. Every Wednesday from 4 PM to 7 PM.
[13] Access takes place in the respondent father's home. He lives there alone.
[14] That access schedule was observed until March 24, 2020 when the applicant's counsel wrote respondent's counsel advising that the applicant mother would no longer allow face-to-face access between Mileena and her father because of Mileena's vulnerability to the Covid-19 virus.
2) The Relationship Between the Parties
[15] The respondent father characterizes this as a high conflict case. The mother denies that characterization.
[16] Having read the affidavits filed by both, I agree with the father that this is a very high conflict case.
[17] As an example, there is a restraining order in place preventing communication between the parties. The affidavits contain little consensus regarding essential facts. As a result, I conclude that one or both is not telling the truth. That created difficulty in that, without the advantageous features of trial including cross-examination, I was unable to make necessary findings with respect to any important facts.
[18] For example, in his affidavit sworn April 2, 2020, the respondent father says that he has not seen his girlfriend since March 19, 2020. The applicant mother entered a photograph of the respondent father's car parked in the area of the respondent's girlfriend’s home which she says was taken March 30, 2020 by a friend. There was initially no affidavit filed from the photographer, nor was there any explanation as to why the friend would have taken a photograph of a vehicle owned by a complete stranger, and then pass that photograph on to the applicant. That simply did not make sense. After that issue had been raised by the respondent, an affidavit was filed by the friend which essentially acknowledged that he had been asked to be on the lookout for the respondent and his girlfriend. He acknowledged the applicant had given him a description of the respondent's car and the licence plate number to facilitate that request. The applicant ought to have disclosed that without the necessity of prompting from the respondent.
[19] In any event, the applicant's friend deposed that the applicant's girlfriend entered the car and the two had driven off. In his affidavit sworn April 5, 2020, the respondent acknowledged that he was in the car that day, but maintained that his girlfriend never got into his car. He had simply gone to her home to retrieve his laptop. That explanation is inconsistent with his evidence of April 2, 2020 when, as said above, the father deposed that he has "not seen her since March 19, 2020.” The respondent father ought to have disclosed this in his earlier affidavit rather than waiting for the issue to be raised by the applicant.
[20] In addition, both parties have indicated a lack of trust in the other to follow any order made by this court. The applicant mother observes that the respondent father has breached the existing restraining order on four separate occasions. The respondent father observes that the applicant mother unilaterally denied access without a court order.
[21] To that I would add that high conflict cases must always be approached with a great deal of caution. It is not unusual for parents to put their own needs ahead of those of the child in high conflict cases. It follows that there is an overarching duty on the part of counsel and the court to ensure that the level of conflict is minimized to the greatest extent possible in order to best serve the best interests of the child. I reminded counsel of the importance of explaining that to their clients.
3) The Quality of Evidence
[22] Consistent with my observations above, the affidavits filed by the parties on the original return date tended to be more focused on each of the parties venting their frustration with the other rather than the critical issue of the safety of Mileena.
[23] I apprised counsel of this observation and inquired as to whether either or both would like an opportunity to provide a follow-up affidavit focused on Mileena's safety in their clients' respective homes, as well as any follow-up information from a treating physician as to whether or not Mileena could be safely transported between the parties’ respective homes.
[24] Both took the opportunity to provide better and more focused evidence as to the core issue of Mileena's safety. That evidence is more fully considered below.
[25] In the end, I found the evidence of both parties to be internally inconsistent from time to time. I also found that on several occasions both had made less than full disclosure. Examples are more fully considered below.
4) Has the Respondent Father Exposed Mileena to Unnecessary Risks with Respect to the Covid-19 Virus?
[26] I find that the respondent father did unnecessarily expose Mileena to risks associated with the Covid-19 virus.
[27] For example, on March 13, 2020 the applicant forwarded an email advising of the importance of not exposing Mileena to any public event or unnecessary contact outside the home. The email explained that the virus is very lethal to those with underlying diseases such as Mileena.
[28] Of interest, that email was sent to the respondent's father and not to the respondent. The respondent maintains that he was unaware of the email.
[29] According to the applicant, emails have always been sent to the respondent's father and not to the respondent in the past. The applicant maintains that a paper copy of that email was also sent in Mileena's bag.
[30] I was unable to determine who was telling the truth on the record before me.
[31] In any event, there is consensus that the respondent took Mileena shopping during a March break access visit which occurred between March 13 and March 18, 2020. According to the respondent, it involved a single trip to one store and another trip to his place of employment. According to the applicant mother, it was a shopping spree that lasted all week. Again, on the record before me, I was unable to determine which version was correct.
[32] In any event, in response to that conduct, the applicant unilaterally denied any further face-to-face access between Mileena and the respondent as of March 24, 2020.
[33] Given Mileena's condition, I find that the respondent father exposed her to unnecessary risks from the Covid-19 virus. It does not matter whether he took her out on one day or multiple days, he should not have taken Mileena out at all.
[34] Prior to leaving the issue, I am aware that the applicant mother also maintains that the respondent does not take Mileena's medical condition seriously. As examples, she maintains that on February 28, 2020, he neglected to give Mileena her nightly dose of anti-inflammatory medication; on March 1, 2020, he neglected to give Mileena her weekly dose of folic acid; on an occasion five years ago, he cancelled an appointment with a rheumatologist without notifying the applicant; and in 2013, he refused to seek medical attention when Mileena had a fever.
[35] The respondent father denies these allegations.
[36] As said above, on the record before me I was unable to determine which version of events was correct.
5) Has the Environment Provided for Mileena by the Applicant Mother Exposed Her to Unnecessary Risks with Respect to the Covid-19 Virus?
[37] I also find the applicant mother has unnecessarily exposed Mileena to the risks of the Covid-19 virus. I also find that she demonstrated a lesser degree of vigilance than what she demanded from the respondent.
[38] I reiterate that the applicant mother was aware of the risk of exposing Mileena to unnecessary contact as early as March 13, 2020. As said above, she had written the respondent in that regard.
[39] Notwithstanding that letter, the applicant mother allowed Mileena to have friends inside of her home over the weekend of March 21.
[40] There is also consensus that the applicant runs a teahouse out of her home.
[41] The respondent deposes that the applicant had customers attend inside her home as recently as March 23, 2020. Of interest, that was the day immediately prior to the date on which the applicant mother stopped Mileena's access with her father for his failure to keep Mileena away from others.
[42] To the contrary, the applicant mother deposes that she has not had customers in her house since March 14, 2020.
[43] Again, on the record before me I was unable to determine which version of events was true.
[44] Presuming the applicant's version to be true, she was bringing customers into her home on the day after she had advised the respondent of the dangers of the Covid-19 virus.
[45] The applicant mother served an affidavit of April 5, 2020 in response to the respondent father's affidavit served earlier that day. In that affidavit, the applicant acknowledged that it was true that she had also taken Mileena outside of the house for what she described as "a short walk" on March 27, 2020, and again on April 2, 2020. The applicant explained that Dr. Berard had advised her to take Mileena outside for walks and to report back to him. I had two serious problems with that evidence for two overarching reasons.
[46] The first is that it stands in stark contrast to several statements in the applicant mother's affidavit of April 2. For example, she states:
- at para. 14, "I am not leaving my home";
- at para. 13, and again at para. 43, that Mileena had told her father "that she felt it was too dangerous to leave home". Inexplicably, that conversation had taken place on the second day that the applicant had taken Mileena for a walk. To be blunt, it is difficult to reconcile Mileena's statement to the respondent father with the conduct of the applicant mother that day. It seems to me that a genuine fear of leaving the house would apply equally to both parents. That discrepancy raises the issue of whether or not the applicant mother is using the Covid-19 crisis as a litigation tool;
- at paragraph 35, that she had contacted Dr. Awuku on March 24, 2020 and had been told that especially those who are at increased risk from the virus should "stay home" consistent with the WHO recommendations. That was three days before the applicant took Mileena for the second walk. As is more fully considered below, Dr. Awuku is Mileena's treating pediatrician.
[47] The second problem was the significant reliance placed upon Dr. Awuku's letter of March 27, 2020 by the applicant. That same day, applicant's counsel wrote to respondent's counsel and stated that "Mileena's pediatrician is recommending that she stay home". Presuming Dr. Berard had instructed the applicant to take Mileena for walks, that was clearly known by the applicant at the time that letter was written and at the time Dr. Awuku's letter was put into evidence. The applicant had a very clear obligation to the court to disclose the existence of that inconsistent medical opinion yet failed to do so until the issue was raised by the respondent.
[48] In summary, the applicant mother also unnecessarily put Mileena in harm's way by allowing Mileena to bring friends into the home, and by allowing customers for the applicant mother's tea business to come into the home well after the applicant was aware of the dangers of the Covid-19 virus to Mileena.
[49] Given the applicant mother's failure to make full disclosure on several occasions, and given the internal inconsistencies in the applicant mother's evidence, I conclude that there may well be other occasions when the applicant mother has unnecessarily put Mileena at risk which I have not been made aware of.
6) Conclusions as to the Conduct of the Parties Prior to the Hearing
[50] I am aware that the respondent father maintains that the March 13 email had gone to his father and that he had not received it. Even presuming that to be true, I find it impossible to believe that the respondent father would be unaware of Mileena's unusually high risk to the Covid-19 virus. The father ignored that information and chose to put Mileena at unnecessary risk by taking her shopping. It is difficult to avoid the conclusion that the father's conduct was a misguided effort to demonstrate dominance in the ongoing conflict with the applicant at the expense of significant risk to his daughter.
[51] The mother also ignored that same information and chose to put Mileena at risk by allowing her to have friends over, and allowing customers into her home. Given that conduct in the face of the email she had sent to the respondent on March 13, I again find it possible that the mother is using the Covid-19 virus as a tool to strengthen her position in the ongoing conflict between her and the respondent, rather than a desire to protect her daughter.
[52] In summary, based on the evidence of the past conduct of both parties related to the Covid-19 virus, it is not at all clear to me who Mileena would have been safer with prior to the hearing of this motion.
[53] What is clear is that this is a time of great need for Mileena. It is a time when the applicant mother, the respondent father, and their respective counsel should be focused on Mileena's well-being and not the ongoing conflict between the parties.
7) The Evidence of the Applicant Mother as to the Steps She Will Take Going Forward
[54] The central issue in this case is whether the applicant mother or father will expose Mileena to any unnecessary risks in the future: see Ribeiro v. Wright, 2020 ONSC 1829, at para 10.
[55] In her affidavit of April 2, 2020, the applicant mother deposes that she, Mileena, and the applicant's 93-year-old Kostas reside together, and that no one else resides in the home.
[56] She also states that no one has entered the home since March 19 when the applicant mother allowed one of Mileena's friends and her mother into the home. The mother stayed for approximately one hour and the applicant drove the friend home after a stay of approximately three hours.
[57] The applicant stated that she is now not leaving her home for any reason whatsoever although, as said above, that turned out to be less than truthful. For example, she uses a friend to drop off groceries and a lab tech will attend her home to conduct blood work for Mileena.
[58] On the basis of that evidence, I conclude that the applicant mother would be doing everything necessary to adequately protect Mileena provided she follows what her April 2, 2020 affidavit says she is prepared to do. That conclusion of course assumes that she follows through with those assurances.
8) The Evidence of the Respondent Father as to the Steps He Will Take Going Forward
[59] The respondent father is an auto mechanic who was laid off from his employment on March 13 as a result of the pandemic.
[60] He lives alone and deposes that he will be self isolating in his home going forward. He states that he will not have anyone into the home, nor will he leave the home to go visit others, including his girlfriend. The respondent father also states that he disinfects his home regularly including wiping down groceries brought into the house before putting them on the shelves.
[61] The respondent father deposes that in the future he will only leave the house for necessities such as groceries, and that he will not take Mileena when he does so.
[62] The respondent father also deposes that he owns his own vehicle and that he will be the only one driving it. He will not carry any passengers in his car at any time other than Mileena. The respondent father says that he will disinfect the vehicle before and after each access visit.
[63] Finally, I am aware that the applicant mother postulates that because the respondent's father has two addresses on the front that his home is actually a duplex. I do not find that anything turns on whether the house is a single-family dwelling or a duplex. The issue is whether the respondent father will take appropriate measures with respect to the living space which is under his control.
[64] On the basis of the respondent father's evidence, I conclude that he will also be doing everything necessary to adequately protect Mileena if he does what he said he is prepared to do. That is with one exception for what he described as trips for necessities such as groceries. I find those trips pose an unnecessary risk that can easily be avoided by having a third party deliver groceries as was suggested by the applicant mother.
[65] Said another way, I do not see any difference between the safety measures undertaken by the applicant mother and the respondent father provided the respondent father does not to leave the home except for a dire emergency or on medical advice or to pick up or drop off Mileena.
[66] Again, that conclusion assumes that he follows through with the plan proposed by him.
9) The Evidence as to the Impact of Transporting Mileena Between Her Parents’ Homes
[67] I reiterate that on the first day of argument I offered counsel an opportunity to gather better evidence as to the central issue of Mileena safety. One question posed by the fact situation was whether or not travel between the homes would result in Mileena being put at unnecessary risk.
[68] Dr. Awuku was asked by applicant's counsel to give such an opinion. Respondent's counsel takes the position that Dr. Awuku did not oppose transportation between the two homes. Respondent's counsel relies particularly on the statement that there are many variables that could be considered in addressing the issue. While I agree that Dr. Awuku made the statement attributed to him by respondent's counsel, I disagree that his letter stands for the proposition that he does not oppose transportation. Dr. Awuku very clearly states that the question is approaching the outside of the scope of this practice. As is more fully considered below, it was Dr. Awuku's opinion that the issue would fall within the scope of the practice of an infectious diseases specialist and a rheumatologist.
[69] There was, however, no evidence from either an infectious diseases specialist or a rheumatologist when the hearing resumed. The applicant did provide a letter from Dr. Inas Makar ("Dr. Makar"), a pediatric ophthalmologist who has been treating Mileena since 2008.
[70] Dr. Makar maintains that Mileena is at a high risk regarding the Covid-19 virus because she is immunocompromised due to the Methotrexate treatment.
[71] Dr. Makar candidly acknowledges that due to the novelty of the virus, there is not enough known through medical literature as to the extent of damage from Covid-19 to children with juvenile idiopathic arthritis and uveitis and who are treated with Methotrexate. Notwithstanding, given Mileena's medical situation, Dr. Makar concludes as follows:
Whoever is looking after Mileena whether it is her mother or father should commit to not leaving the house for the next three weeks and should make arrangement for food and necessary items to be dropped off to the house and should report immediately to health workers if any respiratory systems should arise.
[72] After the hearing had ended, but before my decision was released on April 3, I received an email indicating that the respondent had received another opinion. That opinion is from Dr. Roberta Berard ("Dr. Berard") who is Mileena's rheumatologist. Like Dr. Makar, Dr. Berard observes that reports of the infection in immune suppressed children such as Mileena is sparse. On April 5, each counsel also served and filed another affidavit.
[73] I reconvened the hearing a third day to hear submissions as to the admissibility of that letter and the two affidavits. Although applicant's counsel did not strenuously oppose the admission of either the letter or the affidavits, she did take the position that Dr. Berard's letter "does not say much". Respondent's counsel favoured the admission of the letter and both affidavits.
[74] My primary obligation is to Mileena. The only issue before me is her best interests. It seems to me that those best interests would be most appropriately served by consideration of all pertinent evidence. Accordingly, I considered Dr. Berard's letter and the parties' two follow-up affidavits.
[75] Dr. Berard describes Mileena as "mildly immune suppressed". She also states that a child like Mileena may become sicker than someone who is not on immune suppressants but adds there is no literature to support that conclusion at this time.
[76] With respect to the issue of transfers of Mileena between the parents’ homes, Dr. Berard says that "any transfers should be done in accordance with avoidance of large crowds, social distancing and excellent hand hygiene." In other words, there is no suggestion that the transfers should not be done or that they would put Mileena at any greater risk. That is provided the transfers are done in a manner that does not expose Mileena to people with the virus or things those infected people have come into contact with.
10) Conclusions
[77] As said above, the mother seeks a temporary order varying the final order of Carey J. as to access. In order to succeed, she must demonstrate that there has been a material change in circumstances that affects or is likely to affect the best interests of the child: see s. 29, Children’s Law Reform Act, R.S.O. 1990, c. C.12.
[78] I reiterate the applicant mother's motion seeks a three-week suspension of access with an automatic review at that time. Inherent in that request is a suggestion that the Covid-19 crisis will have passed within three weeks. Although I did not have the benefit of any evidence as to the potential duration of this pandemic, I find it appropriate to take judicial notice that historically pandemics have gone on far longer than three weeks. "None of us knows how long this crisis is going to last": see Ribeiro, at para 10.
[79] As was observed by Pazaratz J., at para. 13 of the decision in Ribeiro, that a blanket policy that children should never leave their primary residence during the Covid-19 crisis is inconsistent with a comprehensive analysis of the best interests of the child. "In troubling and disorienting times, children need the love, guidance and emotional support of both parents" [Emphasis in original].
[80] In this case, I have no difficulty concluding that the Covid-19 virus poses an unusual risk to Mileena and accordingly that a material change in circumstances has occurred. I also have no difficulty concluding that the change has affected or is likely to affect the best interests of Mileena.
[81] The question that remains is whether or not the applicant mother has demonstrated that Mileena's best interests would be better served by suspending access or leaving the current access regime in place.
[82] The primary factors to be considered in this case are balancing of the possibility and consequences of Mileena’s exposure to Covid-19 as against the consequences of depriving Mileena of access to her father. If Mileena's access to her father is disrupted in the manner suggested by the applicant mother, the disruption will no doubt be for an extensive indefinite period of time. Disrupting a child's access to a parent for an extensive indefinite period of time is not something to be undertaken lightly. The child will be deprived of much of the care and guidance of that parent until regular access is resumed.
[83] I begin by reiterating my observations above as to the evidence of both parties. The evidence of each was often internally inconsistent as to important matters. On several occasions both parties, but in particular the applicant mother, failed to disclose important information. As a result, it was difficult to make many of the necessary findings of fact.
[84] In this case, I do not see any meaningful difference between the plan offered by the applicant mother and that offered by the respondent father within their respective homes. That is providing that each conduct access in the manner undertaken, and the respondent father remains in his home and makes arrangements for food and other necessaries to be delivered to the house.
[85] As to the risk associated with Mileena travelling between the two homes, I begin with Dr. Awuku's advice that the issue is outside of his area of expertise.
[86] As to the evidence of Dr. Berard and Dr. Makar, I prefer the evidence of Dr. Berard. There are two overarching reasons for doing so.
[87] The first is the opinion of Mileena's pediatric physician Dr. Awuku to the effect that the question lies within the expertise of infectious diseases specialists and rheumatologists. Dr. Berard is a rheumatologist and Dr. Makar is neither an infectious diseases specialist or a rheumatologist. In other words, Dr. Makar's opinion likely falls outside of the expert opinion exception to the rule against opinion evidence because it does not fall within her area of expertise.
[88] The second reason is that I approached the issue of Dr. Makar's objectivity with some caution. I initially found it odd that Dr. Makar would suggest that the father's access be suspended for the identical three-week timeframe as sought by the applicant on the motion. There was nothing in the applicant's materials that would lead me to conclude that it was sheer coincidence. In the final affidavit filed by the applicant, she candidly acknowledged that she, Mileena, and Dr. Makar had travelled to Greece on the applicant's advice, and that during that trip they had seen each other on several occasions. In other words, the relationship between the applicant and Dr. Makar goes beyond the usual physician-patient relationship. The applicant ought to have disclosed that relationship before the issue was raised by the respondent.
[89] Based upon Dr. Berard's letter, I conclude that the risk posed to Mileena by transfers from house to house is minimal provided that they are done properly. I reiterate that the respondent father proposes that no one other than himself and Mileena would ever be in the car, the car would be disinfected before and after each trip, and no stops would be made either to or from the applicant mother's house with Mileena in the car. That conclusion finds support in the applicant mother's statement that Mileena must, at Dr. Berard's request, go for walks to assess her mobility threshold. In other words, the evidence supports the conclusion that while Mileena should generally avoid going outside, there may be occasions in which a potential benefit exceeds the risk created by the particular activity and the manner in which that activity is carried out.
[90] In weighing the deleterious effects of depriving Mileena of access to her father as against the risks from the Covid-19 virus, I conclude that at least in the short run, Mileena's access to her father should have priority. That is provided adequate safety precautions are taken both during transportation and within the home.
[91] That arrangement will also serve the important purpose of providing a system of checks and balances for both parents given the past failures of each to adequately protect Mileena from unnecessary risks related to the Covid-19 virus, the failure of each to give truthful affidavits, and the failure of each to make full disclosure.
[92] As said above, I was unable to make definitive findings of fact on important issues. I find it important that, at this time, both parents be involved in Mileena's life to the greatest extent possible so that all residential options remain open in the future. Said another way, further adjustments may be necessary as better evidence about the behaviour of the applicant and respondent becomes available.
[93] Prior to concluding, I find it necessary to again comment on the statement in the applicant mother's affidavit that on March 27, 2020, the child Mileena had told her father that she felt it was "too dangerous to leave home.”
[94] I find four potential problems with that evidence.
[95] The first is that, as said above, Mileena had left home with her mother to go for a walk that very day.
[96] The second is related to the first. Given that Mileena went for a walk with her mother that day, I question how a 13-year-old child would have concluded that access visits with her father were "too dangerous" without input from a third party such as the applicant mother.
[97] The third is that a parent should never impose unnecessary fears or adult decisions on a child. Parents should always protect children.
[98] The fourth is related to the first three. That is the possibility that the applicant mother was unnecessarily frightening the child in an attempt to stifle access, rather than simply acting as a concerned parent to ensure that her daughter fully appreciated the dangers that the Covid-19 virus present in her unique circumstances. The applicant mother's conduct in allowing strangers into the home as recently as March 14, inviting a friend of Mileena's and that friend’s mother into the home as recently as March 19, and taking Mileena for walks outside the home as recently as March 27 supports the former possibility.
[99] To be clear, although I find the possibility that the applicant mother is using the Covid-19 crisis to gain a litigation advantage is a live issue, I am unable to make a finding of fact with respect to this vital issue on the frail record before me at this time. That said, I find it important to make these observations in order to ensure there is a record of them should this issue arise in the future.
[100] Both must also understand that it is important to put truthful information before the court to enable the court to do its job in protecting Mileena.
[101] Finally, I find it important to again stress that if the parties love Mileena as they say they do, each must strive to put their respective differences behind them and cooperate in protecting Mileena. Thus far, both have equally failed to do so. Both must understand that if either fails to do so it may well cost Mileena her life.
C. Order
[102] For all of these reasons, order to go as follows:
The access of the respondent Michael Wayne Homme to the child, Mileena Evanthia Homme-Vasilodimitrakis ("Mileena") born April 13, 2006 shall continue in accordance with the order of Carey J. dated August 6, 2015.
In order to minimize risk of infection from the Covid-19 virus to Mileena, until further order of the court the parties shall: a) Not allow anyone in their respective home other than in the case of the applicant, herself, Mileena, and the applicant's father, and in the case of the respondent, himself and Mileena; b) Not allow any of the occupants of the respective homes, including themselves, to leave the home and return except in the case of a dire emergency, or on written medical advice, or for purposes of pickup and drop-off of Mileena; c) Have groceries and any other necessities delivered to the home;
The respondent father shall be responsible for pickups and drop-offs. The following shall apply to those pickups and drop-offs: a) Neither the applicant nor respondent shall communicate with the other during those pickups and drop-offs. Any necessary communication related to the pickups and drop-offs is to be conducted by text message or email either before or after the pickup or drop-off; b) Pickups and drop-offs and related communications shall not be a breach of the existing restraining order. c) The respondent father shall not at any time allow anyone other than Mileena to be inside his car, or at any time allow anyone to use his car for any reason whatsoever. He shall disinfect the car before and after each trip with Mileena. He shall not make any stops for any reason whatsoever while Mileena is in the car. If, for example, he requires gasoline, that must be done without Mileena in the car on the way home after a drop-off, and the car must be disinfected before the car is again used to transport Mileena.
Neither party shall speak in a disparaging manner about the other while Mileena is present;
Neither party shall discuss any of the issues between the parties with Mileena, or with someone else while Mileena is present;
This matter may be returned for further consideration in the event that: a) Either party is unwilling, unable, or refuses to abide by the terms of this order; b) The rapid progress of the virus, and the rapidly evolving information with respect to the virus, is such that Mileena's best interests would be served by revisiting the issue of access;
Given the novel and unusual problems the corona virus is placing on the court system, I am not seizing myself of this matter. That said, trial coordination shall make all reasonable efforts to ensure any return of this matter is heard by me if possible.
As to the issue of costs, I do not find this to be a case where the successful party is necessarily entitled to costs.
I say because the affidavits originally filed by both parties are more of an attempt by each party to vent their frustrations with the other than to explore Mileena's safety and best interests. The failure to focus on Mileena's best interests only served to inflame an already difficult situation, unnecessarily prolong the process, and create an emergency which could have potentially been avoided through focused negotiations. This conclusion finds support in my observations above that both parties had exposed Mileena to unnecessary risks after they had become aware of those risks. If their respective focuses had been Mileena's safety, that never would have occurred.
On the other hand, this motion was brought by the applicant mother who was for the most part the unsuccessful party. It did however serve the very important function of bringing the failure of both parents to appropriately protect Mileena's health to the attention of the court. As a result, the conduct of both parties seems to have been significantly and positively altered. In addition, the court will be in a position to continue to monitor the conduct of both parties in the future if necessary.
Notwithstanding those observations, in the event that either party disagrees with my initial observations as to the issue of costs, and the parties are unable to agree on costs within seven (7) days, then Costs submissions may be made in writing on the following basis:
i. The Counsel for the Party Seeking Costs (Party "A") shall serve costs submissions and a "Cost Outline" as provided for in Rule 57.01(6) (using Form 57(b)) upon counsel for the other party (Party "B") within fourteen (14) days. Such written argument shall be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, Party "A" shall be deemed to have waived their right to do so.
ii. Counsel for Party "B" shall have a further ten (10) days to provide a response to counsel for Party "A". Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, Party "B" shall be deemed to have waived their right to do so.
iii. Counsel for Party "A" shall have five (5) further days to provide a reply to counsel for Party "B". Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, Party "A" shall be deemed to have waived their right to do so.
iv. Once all of those steps have been completed, council for Party "A" shall provide all the submissions to the court through Trial Co-ordination.
v. The costs submission shall be double-spaced and use a "Times New Roman" font no smaller than 12 pitch. All references to the length of submissions exclude Bills of Costs and Costs Outlines and any Offers to Settle. In the event that the parties are unable to agree on costs within seven (7) days.
Christopher M. Bondy Justice
