Court File and Parties

Date: 2020-04-08 Superior Court of Justice – Ontario – Family Court

Re: B.B., Applicant And: A.B., Respondent

Before: The Honourable Justice D.A. Jarvis

Counsel: Brian Ludmer, for the Applicant (Agent) A.B., Self-Represented

Heard: April 7, 2020 - Electronically

Endorsement

[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, as revised on April 2, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].

[2] The applicant (“the father”) and the respondent (“the mother”) are the parents of IB, their daughter born on June 3, 2014. On consent the parties agreed to a final Order of the Court dated January 16, 2019 (“the Order”) that provided that the mother would have custody and that the child would reside with her father at a specified time. He has brought an urgent motion to enforce that part of the Order dealing with the child’s time with him, alleging that the mother has been withholding the child in breach of the Order.

[3] The father’s motion material was served on the mother on April 7, 2020.

[4] By way of background, the mother brought a motion before me on March 4, 2020 to have the father found in contempt of the Order. There were at least eight separate breaches alleged, all of which the father disputed. As the motion would have taken longer than the regular time allotted for a regular motion (1 hour), the father opposed it and insisted upon an oral hearing, a date was scheduled for that hearing to proceed on March 18, 2020 before Kaufman J. One full day was made available. Shortly afterwards the courts were closed in accordance with the Chief’s Notice and so the contempt hearing has been indefinitely adjourned.

[5] Before the 2019 Order was made, this case could be described as high conflict dealing with IB’s parenting. The material filed with the court for the now adjourned contempt motion confirms that continuing observation.

[6] I am granting the Order requested by the father that an urgent motion proceed. The only issue will be enforcement of the Order. Directions as to when that will proceed and what material may be filed will be set out below but to alert each of the parties now as to the approach that will be taken by the Court during the COVID-19 crisis, they should be mindful of the following, which are being provided now with a hopeful, but probably naïve, view that the parties will focus on IB’s safety and well-being.

[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 views 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:

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.

12. 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:

23. 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 father has provided a detailed affidavit dealing with COVID-19 safety measures he has undertaken and follows at home and his place of work.

[13] The following is ordered:

(a) A teleconference motion shall proceed on a date to be fixed by Court Administration;

(b) No other issue may be argued or motion brought by either party than now raised by the father dealing with the alleged breach of the Order;

(c) The mother shall deliver her material in response to the father’s motion by Tuesday, April 14, 2020. It shall not exceed four pages in length (the same as the father) exclusive of exhibits and shall be restricted to responding to the allegations contained in the father’s affidavit sworn on April 7, 2020;

(d) The father shall deliver his reply (if any) by Friday, April 17, 2020. It shall not exceed three pages, exclusive of exhibits;

(e) In the event that either party is unable to have their affidavit sworn, they will be sworn to the truth of their affidavit’s contents before the motion proceeds;

(f) All material shall be filed electronically;

(g) All material shall be provided to the motions judge by no later than 4:00 p.m. two days before the matter is scheduled to be argued;

(h) Confirmation that the motion is proceeding (i.e. delivery of a Form 17F) is dispensed with. If the parties settle the motion before the teleconference, they must so advise the Court forthwith and provide a draft Order to issue on consent;

(i) Each party will have no more than 15 minutes to make their submissions; the father shall be entitled to a 5 minute reply;

(j) The parties are to confirm to the other before the motion proceeds the amount for costs that they will be seeking if successful. The motions judge may give different directions for costs after argument.

[14] In the circumstances of the COVID-19 emergency, these directions 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.

[15] Approval of this and any later Order dealing with the subject matter of this endorsement is dispensed with: the parties may submit formal Orders for signing and entry once the court re-opens; however, these directions are an effective and binding Order from the time of their release.

The Honourable Justice D.A. Jarvis Released: April 8, 2020

Citations

[1] March 20, 2020, Ottawa, 684/19.

[2] 2020 ONSC 1829 , 2020 CarswellOnt 4090 (S.C.J.).