Bartlett v. Loewen 2020 ONSC 2230

COURT FILE NO.:

DATE: 20200414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

INA BARTLETT

Applicant

– and –

ADRIAN LOEWEN

Respondent

Adrienne Lee lawyer for the applicant

Colin C. Lyle lawyer for the respondent

HEARD: April 9, 2020

ENDORSEMENT

DIAMOND J.:

Overview

1The parties have now served and filed their supplementary motion materials in accordance with the terms of my Endorsement dated April 6, 2020. Pursuant to the applicant’s Amended Notice of Motion, she seeks an order suspending the respondent’s access visits with the child of the marriage (a son, who is currently seven years of age) “until social distancing and other measures related to the safety risks of COVID-19 are eased”.

2The issues on the motion were essentially three-fold, although the second and third issues are interconnected:

a) Does this Court have jurisdiction to hear the applicant’s motion?

b) If this Court does have jurisdiction, then on a full evidentiary record, is the applicant’s motion still urgent?

c) If the applicant’s motion is urgent, should the relief sought on her motion be granted?

3Argument of the motion proceeded by way of a two-hour telephone hearing on April 9, 2020. At the conclusion of the telephone hearing, I took my decision under reserve.

The Quebec Judgment

4The parties were married on November 10, 2012 and separated on September 30, 2015. The respondent also has two older children from a previous relationship.

5During the parties’ marriage, they lived in Gatineau, Quebec. After they separated, the applicant commenced a family law proceeding in the Superior Court of Quebec. They were able to resolve the issues in that proceeding by way of Minutes of Settlement, which were incorporated into a final divorce judgment dated (on its face) April 24, 2018 (“the Quebec judgment”).

6Pursuant to the Quebec judgment, the applicant was granted sole custody of the parties’ son, and was permitted to relocate with him to Toronto where she currently resides and works as a nurse practitioner in the cardiovascular intensive care ward at the Toronto General Hospital.

7The respondent continues to reside in Gatineau, and has access to the parties’ son on alternate weekends from Friday evening until Sunday evening. The parties meet in Kingston, Ontario (which is approximately the mid way point between them) for the exchange and pick up.

8According to the applicant, her drives to and from Kingston require their son to “take several meal and bathroom stops along the way”. For his part, the respondent testified that when he travels with their son from Kingston to Gatineau, their son rarely has to go to the bathroom.

Timeline of COVID-19 events in Ontario and Quebec

9A review of the salient events and responses from the provincial and municipal governments in response to the COVID-19 pandemic is helpful:

Date Event

March 12, 2020 The government of Ontario announces the closure of public schools for an additional two weeks after March Break until April 5, 2020.

March 15, 2020 The Chief Justice of the Ontario Superior Court of Justice announces a suspension of operations other than matters deemed to be urgent in accordance with the Chief Justice’s Notice to the Profession

March 17, 2020 The government of Ontario declares a province-wide state of emergency including a prohibition of all public events of over 50 people, and a closure of bars, libraries, theatres, cinemas, private and daycares.

March 23, 2020 The city of Toronto issues a municipal state of emergency.

March 23, 2020 The governments of Ontario and Quebec announce the closure of all non-essential businesses starting 11:59 p.m. on March 24, 2020.

March 23, 2020 The government of Ontario extends the closure of public schools past April 6, 2020 until further notice.

March 24, 2020 The cities of Ottawa and Gatineau ask residents to limit interprovincial travel.

March 26, 2020 The city of Kingston issues a municipal state of emergency

The March 20-22, 2020 weekend

10The respondent’s scheduled access visit was set to take place during the weekend of March 20-22, 2020 in Gatineau. A review of the text messages exchanged between the parties leading up to that weekend discloses that, inter alia, (a) the parties and their son had all fallen ill a few weeks earlier but had since recovered, and (b) the parties were both generally cognizant of the need to practice social distancing measures.

11In one text message, the respondent acknowledged that given the nature of the applicant’s employment, she had “direct access to best practices in this case”. After discussing the general need to maintain social distancing, the respondent stated as follows:

“Ok, well I think we’ll go ahead with it then. We probably won’t go out during his visits anyway (he never wants to leave the house). See you at Starbucks at 4”.

12In her original affidavit, the applicant took the position that the parties reached an agreement that during their son’s visit to Gatineau, the respondent would not only ensure that they practice social distancing, but they would not be leaving the respondent’s home. I do not find the presence of such an agreement, but rather a joint understanding that the parties would consistently use their best efforts to practice social distancing with a view to keeping their son and themselves safe.

13According to the applicant, when their son returned home to Toronto on March 22, 2020, he told her that he and the respondent had visited the respondent’s friend “Ed” at Ed’s home, and that his stepbrother (i.e. “G”, the respondent’s other son) had visited with them as well. The applicant does not know who Ed is other than Ed is not a member of the respondent’s family.

14The applicant attached an audio recording as an exhibit to an affidavit. In this audio recording, their son confirmed that he visited “Ed” with the respondent that weekend.

The Email Exchanges

15On March 23, 2020, the respondent emailed the applicant to advise that he was sent home from work to allow for COVID-19 quarantining. The respondent requested further access with the parties’ son as he had extra time on his hands and believed that the applicant would likely be busy at the hospital. The applicant suggested that the respondent come to Toronto to be with their son, and took the position that it was unsafe for their son to be travelling back and forth between Ontario and Quebec during the COVID-19 pandemic. As the respondent had nowhere to stay in Toronto, he did not agree with the applicant’s proposal.

16Subsequent email correspondence was exchanged between the parties between March 23-31, 2020. While the respondent did not mention any visit with Ed, he did acknowledge that their son had seen G on March 22, 2020.

17Even though the applicant gave evidence that that she was “very concerned” when she learned on March 22, 2020 of their son’s visits with Ed and G, other than the applicant advising that she viewed “visiting with others not complying with federal orders of social distancing”, she did not ask the respondent any questions about the alleged visits with Ed or G.

The Respondent’s Evidence

18In his responding affidavit, the respondent testified that when their son arrived in Gatineau he wanted to know when G would be coming over to see them, as this was a regular occurrence during access visits. Since the applicant had raised prior concerns about restricting their son’s contact with others, the respondent advised G to skip a visit with them at the respondent’s house, but instead meet them for a walk together in a nearby park where they would all adhere to social distancing measures.

19Later on, the respondent’s friend Ed joined all of them on the walk but was reminded by the applicant of the need to respect social distancing protocols during their time together.

20The respondent gave evidence that the vast majority of Quebec COVID-19 cases are in Montreal and towards the eastern townships (i.e. not in Gatineau). He further testified that he implemented all COVID-19 protocols during their son’s last visit to Gatineau, and has now agreed that he will (a) not leave his home or backyard/balcony during future access visits, and (b) restrict their son’s contact with any extended family or friends during those access visits.

The Applicant brings her Motion

21It has been more than 14 days since the parties’ son has been in Gatineau, and based on the evidentiary record before me there are no existing health concerns based upon his potential exposure that weekend.

22Regardless, the applicant became further concerned with the increasing COVID-19 infections in Quebec, and the joint request from the Mayors of both Ottawa and Gatineau to restrict inter-provincial travel between the two neighbouring cities. The applicant gave evidence that since the respondent had breached their agreement and was not taking the relevant government and municipal COVID-19 protocols seriously enough, she was forced to issue her application in Toronto and bring the within motion.

Position of the Parties – Jurisdiction

23The applicant takes the position that pursuant to section 4(1) of the Divorce Act R.S.C. 1985 c.3, a court in a province has jurisdiction to hear and determine a corollary relief proceeding if either former spouses are ordinarily resident in the province at the commencement of the proceeding. The applicant further argues that pursuant to section 17(1) of the Divorce Act, a court of competent jurisdiction may make an order “varying, rescinding or suspending, prospectively or retroactively” a custody order or any provision thereof on application by a former spouse.

24As set out in section 17(5) of the Divorce Act, no variation to a custody order can be made until the Court is satisfied that “there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order”. It is trite to state that before making any variation order, the Court shall only take the best interests of the child into consideration when assessing the presence of any such alleged change.

25The applicant argues in the alternative that pursuant to section 22 of the Children’s Law Reform Act, R.S.O. 1990 c. C12 (“CLRA”), the Court may only exercise its jurisdiction to make an order for custody or access to a child where the child is habitually resident in Ontario at the commencement of the application.

26The respondent argues that the Quebec judgment is a final divorce order that simply incorporates the terms of the parties’ settlement of the Quebec proceeding. As such, even if this Court did have jurisdiction to hear the applicant’s motion (which the respondent opposes), the only way the applicant could invoke the jurisdiction of the Ontario Superior Court of Justice is by issuing a formal motion to change, and the applicant has not done so.

27The respondent submits that this Court has no jurisdiction to issue a temporary order varying the terms of the Quebec judgment, and in any event section 17(5) of the Divorce Act still requires the presence of a material change in circumstances, and not simply a “change” as submitted by the applicant.

Position of the Parties – Urgency/Merits

28Relying upon Justice Pazaratz’s recent decision in Ribeiro v. Wright 2020 ONSC 1829, the applicant argues that there is specific evidence of behaviour on the part of the respondent which is inconsistent with the governing COVID-19 protocols, and the respondent’s failure to practice social distancing not only impacts their son but potentially the vulnerable patients at the hospital where the applicant works. The applicant has attempted to resolve the issue directly with the respondent before initiating this proceeding, but was left with no choice but to proceed with this motion.

29The respondent submits that he has complied with the relevant COVID-19 protocols, and has provided all the necessary assurances that COVID-19 protocols are being maintained in his household. The respondent believes that the applicant is using the COVID-19 pandemic to unilaterally change the access terms of the Quebec judgment to her advantage, even on an interim (but yet to be time limited) basis.

Decision

30The issue of whether this Court has jurisdiction to hear the applicant’s motion is indeed an interesting one. The Quebec judgment is a final, divorce order. I do not believe that this application is a “corollary relief proceeding”, and therefore, section 4(1) of the Divorce Act does not seem to apply.

31As recently held by Justice Gray in Fournier v. Fournier 2020 ONSC 606, before any variation in respect of a custody order can be made, section 17(5) of the Divorce Act requires the Court to find the presence of a material change in circumstances. The requirement to show that material change in circumstances is jurisdictional, and in the absence of same, the Court has no power to proceed further.

32However, in Hatt v. Hatt 1993 4418 (NSSC), the Court was asked to consider whether section 17(5) of the Divorce Act applied to the facts of that case, which included the underlying divorce order being granted by a provincial court. In concluding that section 17(5) of the Divorce Act was not applicable, the Court made the following comments (albeit arguably in obiter):

“The underlying prerequisite of being a ‘court’ under the Divorce Act of Canada is the judge presiding is a federally appointed judge. On that basis any court which meets the definition of the Divorce Act, no matter where situate in Canada, can have its order enforced or varied in the province of Nova Scotia”

33In Brouillard v. Racine 2002 2648 (ONSC), the parties (who were never married) lived in Quebec until their separation, and the father commenced a custody action in Quebec resulting in a judgment providing for joint custody of the child with the child’s residence alternating every three months. The mother had relocated to Thunder Bay, Ontario, and subsequently commenced an application for a variation to the existing custody terms in the Quebec judgment. In finding that the Ontario Superior Court of Justice did not have jurisdiction to hear the mother’s application, Justice H. M. Pierce held that the provisions of the CLRA are designed to discourage forum shopping, and even though the child was habitually resident in Ontario due to the father having consented to the access terms in the Quebec judgment, section 42(1) of the CLRA prescribes limited circumstances in which an extra provincial order for custody may be superseded by an Ontario variation order, and the facts of that case did not meet those requirements.

34In my view, and on the facts of this case, it is unnecessary for me to decide the substantive issue of whether this Court has jurisdiction to hear the applicant’s motion; as for the reasons which follow I find that the motion is not urgent as that term is defined in the Chief Justice’s Notice to the Profession dated March 15, 2020 (and updated on April 2, 2020).

35As held in Ribeiro, there should be a general presumption that existing parenting arrangements and schedules (in particular those codified in a consent Order) should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are being met. I agree with Justice Pazaratz that there should be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk. However, to use Justice Pazaratz’s own words, “each family will have its own unique issues and complications, and there will be no easy answers”.

36As held in Lee v. Lee 2020 ONSC 2044, in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.

37As can be seen from the COVID-19 timeline above, government and municipal protocols during this pandemic may vary from week to week, if not potentially day to day. On the record before me, the applicant has not demonstrated the type of parental behaviour on the part of the respondent which ought to necessitate any restrictions on his access and parenting time. In light of everyone practicing social distancing protocols and keeping at least 6 feet away from each other (which was the governing COVID-19 protocol that weekend), it was not reckless for the respondent to take his two sons on a walk in the park, even if his friend Ed was present.

38The respondent’s approach to keeping their son safe that weekend does not raise sufficient concerns about his judgment that warrant the intervention of this Court. I adopt the recent comments of Justice Madsen in Cooper v. TenEYCK 2020 ONSC 1876:

“There are significant challenges for parents in knowing what is best for their children at this time. The “goal posts” seem to move daily, and what is deemed “safe” today may not be deemed “safe” tomorrow. Parents and the courts are aware that recommendations by senior public health officials are shifting in response to the evolution of the pandemic in Canada. While travel back and forth from Kitchener to Listowel for parenting exchanges may not be contraindicated by public health officials today, it is possible, based on the well-publicized experiences of other countries at this time, that such travel may be contraindicated in the not-too-distant future. We simply do not know. It is no wonder that this is a difficult time for parents to make decisions.

This is a circumstance that demands the best of parents and requires them to work together, no matter their differences, to craft the safest options for children while ensuring that children derive the benefit of the love, nurturance, and guidance of both of them. Of course, the overriding requirement on parents is to keep the health, well-being, and best interests of their children at the forefront of their decision-making.”

39The applicant’s alternative argument that her drives to and from Kingston could expose their son to additional risks through meal and bathroom breaks do not render this motion to be urgent. There are several ways the mother could adapt her typical drives to and from Kingston with their son, including not stopping for meals and bringing food for them in the car. If a bathroom stop proves necessary, there are certainly ways that their son could relieve himself without increasing exposure to other individuals.

40The applicant’s concerns, while subjectively understandable, are not urgent. Both parties recognize the importance of staying safe and keeping their son healthy and away from any health risks.

41The terms of the Quebec judgment continue to govern the parties. The respondent has already stated in his sworn affidavit that he will abide by COVID-19 protocols to keep their son at his home, without visitors, during his access weekends. In my view, that should arguably have been enough to avoid this motion proceeding.

42For these reasons, the applicant’s motion is dismissed as being not urgent.

Costs

43If the parties are unable to agree on the costs of this motion, they may serve and file written costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:

(a) the respondent’s costs submissions to be served and filed within seven (7) business days of the release of this Endorsement; and,

(b) the applicant shall thereafter have an additional seven (7) business days from the receipt of the respondent’s costs submissions to serve and file her responding costs submissions.

Diamond J.