Court File No.: FS 53-14 Date: 2020-04-08
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: Tracy Buhrows Leach, Applicant And: Thomas Ennis MacDonald, Respondent
Before: Madam Justice L. Madsen
Counsel: Both parties self-represented
Heard: In Chambers
Endorsement – COVID-19 Protocol
[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[2] In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by the Applicant mother, Ms. Leach. She asks that the court make an order on an urgent basis that the Waterloo Police “carry out the order of Justice Sloan” regarding access and access exchanges, or a temporary suspension of access if The Respondent father, Mr. MacDonald, fails to return the children at the police station.
[3] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
[4] Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.
[5] For the reasons set out below, I find that this matter is urgent at this time, and will be referred to a motions judge for determination on the merits. However, I also set out temporary temporary without prejudice terms which could avert the need for the motion.
[6] The following materials were filed by email with the Superior Court of Justice in Kitchener, Ontario: a. Ms. Leach’s Notice of Motion dated April 7, 2020. b. Ms. Leach’s affidavit dated April 7, 2020. c. Temporary Order of Justice Sloan dated August 26, 2015 setting out terms of access, including access exchanges. d. Order of Justice Sloan dated August 29, 2018. e. Endorsement of Justice Piccoli dated February 24, 2020, setting the matter to a Trial Management Conference. f. Endorsement of Justice Gibson dated March 12, 2020, permitting service of documents by email.
[7] Ms. Leach’s affidavit has been signed but not sworn. If this matter proceeds to the hearing of the motion she will need to be sworn in and her statements adopted under oath or affirmation.
[8] At this time the court does not have responding materials from Mr. MacDonald. If this goes forward to a motion, his perspective will be important for a determination on the merits.
[9] Ms. Leach asserts the following in her affidavit: a. That the parties are the parents of twins, aged 8 ½; b. That there is a significant history of conflict between the parties; c. Ms. Leach alleges significant abuse against her by Mr. MacDonald, which she says was physical, sexual, financial, verbal, and emotional; d. Ms. Leach says she is afraid of Mr. MacDonald, and that she suffers from complex post-traumatic stress syndrome related to years of intimate partner violence. She says that Mr. MacDonald says she is “making it up.” e. The temporary order of Justice Sloan dated August 26, 2015 governs access exchanges. Under that order, if school is not in session and Ester Dagar is not available, access exchanges “shall take place at the police station.” f. Estar Dagar is a previous nanny and is not available. She has not worked for Ms. Leach since 2016. g. Ms. Leach says that since the advent of COVID-19, Mr. MacDonald has insisted that Ms. Leach pick up the children from his home at the commencement of her parenting time, rather than at the police station, while he is prepared to pick up the children from the police station when they are returning to his care. h. Ms. Leach wants pick ups and drop offs to continue to be at the police station in accordance with the order of Justice Sloan given her stated fear of Mr. MacDonald.
[10] It appears from the materials before the court at this time, without the benefit of Mr. MacDonald’s evidence, that Mr. MacDonald’s concern relates to potential exposure to COVID-19 at or within the police station itself. In addition, based on print-outs from the parties’ conversations on Our Family Wizard (OFW), he appears to be of the view that the police station is an inappropriate location for children to be exchanged in any event. The OFW printouts confirm that these parents have significant conflict. I am not able to confirm from the OFW discussions provided by Ms. Leach, however, that Mr. MacDonald is picking up the children from the police station when they are coming into his care.
[11] Excerpts from what appear to be Mr. MacDonald’s entries in the OFW correspondence include the following:
March 15, 2020 “The London Custody Group, Family and Children’s Services, Office of the Children’s Lawyer, Justice Sloan and myself all feel that the police station is an inappropriate environment for the children to be exchanged …. Your current practice of exchanging the children at the police station and sometimes leaving them in the female washroom would now endanger them, putting them at high risk to be exposed to the virus.
Due to the danger that public spaces present to the children and each of our households, the children should be exchanged at my house. As previously suggested, you may park at the end of my driveway on Y Drive to drop off the children. You may stay in your vehicle and I will stay in my house so there is no contact between us. The children are old enough to walk between my front door and your vehicle alone. Please confirm your consent by 8:00 pm today.” [emphasis added]
April 4, 2020. “[The children] can be picked up at my driveway at the usual time of 8:30 am. You stay in your car. I’ll stay in my house. I clearly want no contact with you. Everything is closed in Waterloo Region. I don’t want to needlessly endanger the children, and both households, by exposing them to a public setting. Beep your horn once when you arrive…”
[12] The Notice to the Profession issued by the Chief Justice provides that urgent matters may include matters related to the safety of a parent or a child, or urgent issues related to the wellbeing of a child.
[13] In Ribeiro v. Wright, 2020 ONSC 1829, released March 24, 2020, Pazaratz J. set out principles to aid in the determination of urgency with respect to parenting issues in this difficult time. Those principles are as follows: a. In most situations, there is a presumption that existing parenting arrangements and schedules should continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing. b. In some cases, a parent may have to forego scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness. c. In some cases, personal risk factors through employment or associations, may require controls on direct contact of a child. d. Further, lifestyle or parental behavior in the face of COVID-19 may necessitate restrictions on parenting time. There would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk. [emphasis added]
[14] I would add that there may be risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments.
[15] Pazaratz J. stressed that no matter how difficult the challenge, or what modifications or restrictions may be appropriate, we must find ways to maintain important parental relationships, above all in a safe way.
[16] In Thomas v Wohleber, 2020 ONSC 1965, at paragraph 38, Kurz J. provided guidance on what constitutes urgency at the present time:
- The concern must be immediate; that is one that cannot await resolution at a later date.
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children.
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[17] In my view, applying the Notice to the Profession and the developing caselaw on this issue, the motion brought by the mother is urgent. Without a resolution of the matter at hand, albeit a narrow issue, the conflict between the parties may escalate and result in unilateral upset to the existing parenting arrangements. Already, the correspondence on OFW is voluminous and the language angry and inflammatory.
[18] While I agree with Mr. MacDonald’s apparent statements on OFW that transitions at a police station are not ideal, that is what is required under the operative court order. As numerous judges have by now stated since the advent of COVID-19, court orders about parenting time continue to be in effect until written agreement between the parties otherwise, or a new court order.
[19] Thus, while I am finding the matter to be urgent, I am also making a temporary temporary without prejudice order that the exchanges of the children continue to take place at the police station as required under the current court order. Those exchanges shall take place in the parking lot, not inside the police station. Both parties shall park at the parking lot (if possible several parking spots apart), the parties shall stay in their cars, and the children shall walk between vehicles. The party dropping off the children shall not leave the parking lot until the children are safely in the vehicle of the other parent.
[20] It would be my hope that the making of this temporary temporary without prejudice order would resolve the issue between the parties about access exchanges, pending the resolution of the COVID-19 situation. This is a narrow issue and in my view the caselaw is clear about the status of Justice Sloan’s order.
[21] However, if, notwithstanding this temporary temporary without prejudice order, Mr. MacDonald would like to file materials and have the motion heard on its merits, the following timeline shall be in effect: a. Mr. MacDonald shall have until April 14, 2020 at 5:00 p.m. to serve and file responding materials. b. Ms. Leach shall have until April 16, 2020 at 5:00 p.m. to file a brief Reply affidavit. c. Any materials filed shall be emailed to Kitchener.Superior.Court@ontario.ca with the name and file number as well as the word “urgent” in the subject line. d. If responding materials are received, the motion shall be referred to a motions judge and heard by teleconference during the week of April 20, 2020, to be scheduled by the Trial Coordinator, who will advise the parties by email of the date and time of the motion. e. If no responding materials are filed, the order made today shall continue to be in force and effect until further order of the court and shall be made temporary.
[22] Court staff are requested to serve the parties by email with a copy of this endorsement by email.
[23] Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.
L. Madsen, J DATE: April 8, 2020