Court File and Parties

Court File No.: 2197/13 Date: 2020-04-06 Superior Court of Justice - Ontario

Re: Joanne Ivens, Applicant And: Cameron Ivens, Respondent

Before: Kurz J.

Counsel: Ms. Ivens, Self-represented Mr. Ivens, Self-represented

Heard: by teleconference

Preliminary Endorsement

[1] The Applicant mother ("the mother") moves on an urgent basis for the temporary "suspension" of the current 2/2/3/ shared parenting arrangement regarding the younger two of the three children of the marriage, ("O and R"),[^1] ordered by Justice Giselle Miller on December 18, 2017. Miller J.'s December 18, 2017 order calls for O and R to be in the care of the mother Monday – Wednesday, the Respondent ("the father") on Wednesday – Friday and then on alternate weekends with each parent.

[2] In seeking a "suspension", the mother effectively requests an interim variation of Miller J's order. The result would be a new temporary order that O and R remain in her exclusive care, thereby eliminating all in-person parenting time with the father. If granted, the mother's plan would have the father's contact with the children limited to daily electronic contact. The father opposes the mother's motion and requests that it be dismissed.

[3] I have heard lengthy submissions and have reviewed the parties' written materials. I have allowed the parties to swear their affidavits (an original affidavit of the mother, a responding affidavit of the father and a reply affidavit of the mother) before me during this teleconference motion. I have done so upon their undertaking and my order that they swear those affidavits before a commissioner in the ordinary course and file them in the continuing record of this proceeding with the court when it resumes its ordinary functions.

[4] I have requested the parties to provide me with documents to which they referred in their materials or submissions. In particular, I have asked them to provide me with the trial endorsement of Miller J., the OCL report of Crystal Dorian and the parties' pleadings in this motion to change, brought by the mother in July 2019.

[5] I have reserved my decision in this matter. I hope to have it ready within a week. But the parties inform me that the mother has withheld the children from the father from March 27, 2020 onward, in contravention of the Miller J. of December 17, 2017, imposing the 2/2/3 parenting schedule. Withholding O and R also breaches the terms of Miller J.'s earlier order of May 15, 2017, following the trial of this matter. At that time, Miller J ordered that:

• it is the responsibility of the parent with the children to ensure that they attend the access changeover, and
• that there shall be no changes to the access schedule.

[6] At the conclusion of the argument of this motion, I informed the parties that until I release my decision, I expect that the orders of Miller J. and in particular the terms described above, be obeyed. I rely on the comments of two judges of this court in recent COVID-19 related cases. In Wright v. Ribeiro, 2020 ONSC 1829, Pazaratz J. stated that:

There is a presumption that all orders should be respected and complied with. More to the point, 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.

[7] In Cooper v Teneyck 2020 ONSC 23789, Madsen J. wrote:

[14] What is "urgent" at this time is that this mother and this father work together to adapt and shape their existing parenting order to work in the current circumstances. That order continues to govern. There is no presumption that COVID-19 permits a primary residential parent to terminate the children's time with the other parent.

[emphasis in original]

[8] Although it should not be necessary to make an order than any existing order remains in place, I so order. I do so in order to ensure that there is no misunderstanding. The mother stated that she will comply.

[9] As there is little ability to issue a formal order, and as this order is effective when given, this endorsement shall operate as an order until one can be issued by the court.

April 6, 2020

____ Marvin Kurz J.____

Kurz J

[^1]: I use only each child's first initial to identify him or her in order to protect the children's privacy.