Court File and Parties

COURT FILE NO.: 16-482-02 DATE: 2020/04/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Toth, Applicant AND: Katelyn Stockton, Respondent

BEFORE: Honourable Madame Justice M. Fraser

COUNSEL: Self-Represented Applicant Self-Represented Respondent

HEARD: April 8, 2020

Endorsement

[1] This motion is brought by the Respondent mother, Katelyn Stockton (“Stockton”) asking for an Order requiring the Applicant father to comply with the Final Order of Justice Selkirk dated September 6, 2018 (the “Order”).

[2] As a result of COVID-19, a determination of urgency may be made according to the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [the “Notice”]. Under that Notice, the regular operations of the Ontario Superior Court of Justice have been suspended since March 15, 2020, except in the case of urgency.

[3] This hearing was heard today by way of teleconference.

Background

[4] The Order which governs the existing custody/access arrangement between the parties provides that the parties are to have joint custody of their 5-year-old child, Blake Alexander Ray Toth born April 25, 2014 (“Blake”). The parties have since the date of that Order and in accordance with its terms implemented a week-about access arrangement.

[5] Both parties have electronically submitted unsworn affidavits. Stockton’s affidavit was dated March 31, 2020 and Toth’s affidavit was dated April 6, 2020. Both parties affirmed the truth of the contents of the affidavits at the commencement of the teleconference.

[6] The Applicant father, Michael Toth (“Toth”) refused to return Blake for his access week with Stockton due to the COVID-19 situation. He has retained Blake in his exclusive care since March 29, 2020. He claims that Stockton is not complying with the directives of public health authorities (the “directives”) to self-isolate and that she is exposing Blake to the risks posed by COVID-19 by not appropriately taking steps to minimize their contact with others.

[7] In particular, Toth states that the unnecessary exposures are the result of the following:

1. Stockton has another child (“Zoe”) who shares a week-about custody arrangement with Zoe’s father. That father is an electrician who Toth claims continues to work as an essential service in the homes of others. Toth claims that that father is also visiting his parents which would suggest that he is not abiding by the directives for social distancing. As a result, Zoe is bringing the risk from exposure into Stockton’s home;
2. Blake developed a cough and sore throat while in Stockton’s care and Stockton did not take any steps to self-isolate with Blake but rather had Blake visiting others. He relies on this as a demonstration of Stockton’s disregard for the directives;
3. Stockton has very recently become involved with an individual named Alex Russell. She informed Toth of this new relationship on March 20, 2020. Russell has two children of his own in a shared custody arrangement. Stockton and Russell have continued to visit each other, with their children, between their homes despite the directives.

[8] Toth maintains that he, on the other hand, is minimizing the risks posed by COVID-19 by complying with the directives regarding physical distancing and that it is therefore in Blake’s best interests to remain with him for the duration of the pandemic.

[9] The mother responds to the father’s allegations as follows:

1. The father of Zoe is no longer working and it is her understanding that he is complying with the directives regarding social distancing. She did not comment on the apparent visit which the father had with his parents.
2. She did not deny not self-isolating with Blake when Blake was sick.
3. She realizes that she misstepped by continuing to have contact with Russell and his family. She represents that this is not continuing to happen and that the last “in person” contact with Russell or his family members was on April 2, 2020.

Analysis

[10] The first issue I must determine is whether any of the matters in dispute between the parties need to be addressed on an “urgent” basis given the current COVID-19 situation.

[11] The regular operations of the Ontario Superior Court are currently suspended due to the COVID-19 situation. The Court will continue to hear urgent matters during this emergency period, but what constitutes an emergency is, of necessity, narrowly defined. In family law matters that do not involve child protection proceedings under the Child, Youth and Family Services Act, the Court will hear urgent issues related to the safety and well-being of a child.

[12] I find that this urgent motion is warranted. The issue in this motion effectively concerns whether Stockton’s access should be varied or effectively suspended, temporarily but indefinitely, due to Toth’s allegations that Stockton is exposing Blake to significant risks, due to her not complying with COVID-19 safety measures. While the withholding of access, particularly over a short period, such as one, two or three weeks, would not usually meet the threshold of urgency, in this situation, it appears that Stockton intends to deny Toth access for an extended, indefinite period in light of the pandemic. I accept that this denial of contact, along with the evidentiary basis supporting the otherwise apparent risks possibly caused to the safety and well-being of Blake, are of sufficient gravity to Blake’s best interests to be considered urgent.

[13] In this instance, the existing Order provides for Stockton to have Blake in her care every second week as part of a shared regime. There is a presumption that this order should be respected and complied with. As stated by Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829: “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.”

[14] I therefore begin with the presumption that the existing parenting arrangement and schedule should continue as this is what was determined to be in the best interests of Blake. This is only subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to. This includes strict physical distancing and self-isolation when indicated.

[15] Toth has provided evidence (which Stockton has not denied) that she and those in her care have been in contact with certain persons when such contact was not essential and may be in violation of the directives of public health authorities for physical distancing.

[16] First, I do not see any basis to interfere due to the ongoing access arrangements which are in place with respect to Stockton’s other child Zoe. While this will necessarily involve some extended contact between Stockton’s family unit with others, absent evidence which would suggest otherwise, the arrangements in place with respect to both Blake and Zoe are nonetheless presumed to reflect what is in the best interests of that children.

[17] As stated by Justice Pazaratz in the Ribeiro v. Wright decision, “a blanket policy that children should never leave their primary residence – even to visit their other parent – 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, now more than ever.”

[18] However, this does not permit Stockton to turn a blind eye should it be apparent that the other parent is not respecting the need to follow the directives. As a parent, it is expected that Stockton will take the appropriate steps to insist that all persons involved with her children will take whatever steps are reasonably necessary to ensure her children are not unnecessarily exposed to COVID-19 risks.

[19] Stockton’s willingness to have ongoing contact between her home and the home of Russell is a separate matter and it does not explain why certain measures to self-isolate were not taken when Blake showed symptoms.

[20] In this respect it appears that certain aspects of Stockton’s recent behavior have been ill conceived.

[21] I accept Stockton’s explanation that she recognizes that continued exposure between her household and the members of the Russell household is unnecessary and not justified. I am also prepared to accept her assurances that she is prepared to adhere to the public health directives and she has been doing so since April 2, 2020.

[22] Given Stockton’s assurances that she is now taking the directives seriously and is prepared to comply with them, I do not conclude that her access time with Blake should be placed “on hold” indefinitely. In the circumstances, it seems such an action would be unnecessarily upsetting for Blake. Suspending personal contact between Blake and his mother indefinitely is likely not consistent with Blake’s best interests. As stated by Justice Pazaratz in Ribeiro v. Wright, “in troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

[23] I am prepared to accept Stockton’s assurances that she intends to strictly comply with the directives moving forward. However, any continued failure to comply with physical distancing or failing to take reasonable health-precautions may support a reconsideration of the existing arrangement. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

[24] Furthermore, given that Stockton has admittedly not adhered to the directives, there should be a period of time pass to ensure that her actions do not unduly expose Blake to the risks of the current pandemic. An appropriate period of time needs to pass since she last had contact with others in a manner which was contrary to the public health directives.

[25] An order shall issue as follows:

1. The child, Blake Alexander Ray Toth born April 25, 2014, shall remain in Toth’s care until a further ten-day period from today’s date;
2. During this period of time, there shall be reasonable and generous telephone and video access between Stockton and the child, Blake Alexander Ray Toth, born April 25, 2014 as arranged between the parties;
3. Stockton is expected to comply with the public health directives respecting self-isolation and social distancing, and after this ten-day period, the week-about access regime between the parties shall resume and all terms of the Order of Justice Selkirk respecting the terms of custody and access shall continue in full force and effect;
4. In the event that there is a further material failure by Stockton to adhere to the public health directives respecting measures required of the public as a result of the COVID-19 pandemic, Toth may seek leave to return this motion for further consideration by submitting a further affidavit to support such further concerns.

Electronically signed by Fraser J. Date: April 9, 2020