Court File and Parties

Court File No.: FS3039-12 Date: 2020-04-14 Ontario Superior Court of Justice

Between: Corinne Elizabeth Michelle Rutledge, Applicant – and – Jason Richard Taillefer, Respondent

Counsel: B. Thorpe, for the Applicant W. Abbott, for the Respondent T. F. Martin, for the OCL

Heard: April 2, 2020 (by teleconference)

Reasons for Decision

Wilcox, J.

[1] On April 2, 2020, I signed a temporary order in this matter, indicating that reasons would follow. These are those reasons.

[2] The matter was dealt with pursuant to the Superior Court of Justice’s Notice to the Profession dated March 15, 2020 regarding the suspension of regular operations during the COVID-19 emergency, which notice provided for the hearing of matters deemed to be urgent.

[3] The respondent father’s notice of motion and affidavit dated March 25, 2020 were served on the applicant mother’s counsel and the OCL’s Tanya Farkouh Martin.

[4] The matter was found by a triage judge to meet the definition of urgent after a review of the moving party’s materials.

[5] Consequently, arrangements were made to receive further materials and to hear the matter by teleconference. The mother filed an unsworn affidavit which she affirmed at the hearing to be true. The father filed a further affidavit in reply. The OCL filed the March 30, 2020 statement from Ontario Chief Medical Officer of Health.

[6] The parties are the parents of the child, Porter Mitchell Equinox Taillefer (Porter), born September 21, 2007, now aged 12. The parenting arrangements for the child were set out in the Final Order of Ellies J. dated February 11, 2013. That order said that the principal residence of the child would be with the mother. The parties would have an approximate week about schedule with exchanges Sundays at 7:00 p.m., subject to other provisions which resulted in the child residing with the mother for a greater percentage of the time. The parties were said to have varied the exchange time informally.

[7] Also in the background are motion to change proceedings, ongoing since April, 2019, in which the father seeks to increase and the mother seeks to decrease the father’s time with Porter, the OCL is involved, and nothing has been resolved as of yet. No doubt these proceedings colour the present one.

[8] The events that led to this motion began with the parties’ communications regarding the father’s upcoming access in March. The mother texted the father with three specific questions about COVID-19 precautions for Porter when in the father’s care and providing some information regarding the precautions being taken in the mother’s household. The father responded with only a general answer and that he would pick up Porter. The mother repeated two of her questions, with no response. Only then did she advise that, given the father’s lack of communication on this serious matter, she would keep Porter at home.

[9] The father’s response failed to address the COVID-19 issue. Instead, to him, it was a question of who had authority to decide regarding Porter. Consequently, he involved the police, despite there being no police enforcement clause, and the courts. To their credit, it appears that the police limited their involvement to encouraging the parties to work it out.

[10] The text messages appended to the father’s materials appear to show the mother trying to communicate with him regarding what was being done to protect Porter in the circumstances. The father’s response chose confrontation over cooperation. Ironically, he provided in his subsequent affidavit the sort of information the mother was seeking in the initial text messages.

[11] There are conflicting allegations and denials regarding whether the mother is interfering with the father’s communications with Porter, and on other points, which I cannot resolve in this forum.

[12] Also, on the face of it, Porter appears to be choosing not to go to his father’s for access due to the COVID-19 situation.

[13] The upshot was that, as of March 16, 2020, the mother notified the father that she would be keeping Porter at her home until further notice.

[14] The father’s notice of motion seeks:

1. A resumption of his parenting time per Ellies J.’s order;
2. Make up time; and
3. A police enforcement clause. The make up time was not pursued at the hearing.

[15] Porter’s OCL lawyer, Ms. Martin, sought to make oral submissions at the hearing. She explained that:

1. She is in quarantine;
2. She had no clinical investigator who could do an affidavit;
3. The timeline was short;
4. She was in a position to relay Porter’s views and preferences.

[16] The mother’s counsel agreed. An adjournment was suggested if the OCL’s submissions were not to be received. The father’s counsel objected because the OCL had no evidence in proper form and the independence of Porter’s views and preferences was questionable due to the circumstances in which they were ascertained, allegedly. I opted to hear the OCL’s submissions before deciding what to do with them. It would be incongruous to adjourn the matter that had been deemed to be urgent at the triage stage unless it was found on the evidence not to be urgent.

[17] A substantial body of caselaw around such urgent motions has developed in the short time since the court suspended its regular operations due to the COVID-19 crisis. The seminal case is that of Ribeiro v. Wright, 2020 ONSC 1829. In it, Pazaratz J. dealt as a triage judge with an urgent motion by the mother to suspend the father’s in person access to their nine year old son because of COVID-19. That case provided a very thoughtful review of how COVID-19 concerns impact on parenting arrangements. In summary, there is a presumption in favour of continuing existing parenting arrangements subject to a consideration of the peculiar risk factors on a case by case basis. Although parenting arrangements might have to be changed in response to those risk factors, safe ways must be found to maintain important parental relationships. Parents are required to:

1. Act responsibly;
2. Make good faith efforts to communicate;
3. Show mutual respect;
4. Attempt simple problem solving before initiating urgent court proceedings using limited judicial resources;
5. Not presume that the COVID-19 crisis will necessarily result in an urgent hearing, let alone an automatic suspension of in person parenting time;
6. When a matter is brought as an urgent motion, provide specific information about the adherence or failure thereof to COVID-19 protocols and realistic time-sharing proposals.

[18] Subsequent cases have followed Ribeiro v. Wright. They make it clear that the starting point is adherence to existing parenting arrangements, while taking necessary precautions. Unilateral changes to parenting arrangements are not allowed.

[19] The present case differs from Ribeiro v. Wright in that here the motion was brought not for an order to change access, but because one side had unilaterally changed access, bringing it within the definition of urgent.

[20] However, as previously noted, the mother’s initial concerns about COVID-19 precautions in the father’s home were addressed in the documents filed herein. Consequently, they are no longer the basis for her retention of Porter in the face of the court’s order. The focus of the mother’s argument evolved to Porter’s preferences, anxiety and asthma. In this regard, she was supported by the OCL. It was submitted that:

1. Porter wanted to decrease his time with his father even before the COVID-19 crisis;
2. Porter had situational and family related anxiety, being in the middle of his parents’ conflict;
3. Porter’s asthma put him at greater risk. For these reasons, the mother and OCL submitted that Porter should be left in the mother’s care.

[21] There was said to be evidence, including medical evidence, on point. However, it was not before the court on this motion.

[22] The first two grounds are matters to be dealt with within the ongoing motion to change proceedings. Although important, I see nothing raising them to level of urgent or emergency matters at this time. An asthmatic condition might more obviously be the basis for an urgent motion in view of COVID-19. If either party seeks to vary the residential or access arrangements on these or other grounds on an urgent motion, in keeping with Ribeiro v. Wright, there would have to be specific evidence about them and their implications.

[23] Therefore, I order as follows:

1. The respondent’s parenting time with the child, Porter Mitchell Equinox Taillefer, born September 21, 2007 (Porter) shall resume on April 6, 2020, when Porter shall return to the respondent’s care in accordance with the final order of Ellies J. dated February 11, 2013, with the following schedule adjustment: a) Exchanges for the parties’ week about parenting time with Porter shall occur each Monday at 9:00 a.m. instead of each Sunday at 7:00 p.m.
2. Costs shall be reserved to the next in person court appearance.

[24] The respondent did not argue for make up time. Furthermore, I am not inclined to think that it would be appropriate at this time.

[25] There will be no police enforcement clause. Such a clause was rejected in Eden v. Eden, 2020 ONSC 1991, because it could potentially put children at increased risk of exposure. In addition, Porter is twelve and there is some indication of him having preferences for reduced access to his father. If necessary, these could be dealt with using more subtle means rather than involving the police and potentially negatively affecting his alleged anxiety or his relationship with his father.

“J. Wilcox J” The Honourable Justice James A. S. Wilcox Released: April 14, 2020