SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-19-341
DATE: 04/14/2020
RE: Anna Evelyn McNulty, Applicant
AND:
Tanner Kevin Graham, Respondent
BEFORE: Honourable Madam Justice M. Fraser
COUNSEL: Jane O’Neill, Counsel for the Applicant
Lucienne MacLauchlan, Counsel for the Respondent
HEARD: April 9, 2020
ENDORSEMENT
[1] There are two motions before me. The first is the motion brought by the Applicant mother, Anna Evelyn McNulty (“McNulty”) asking substantively for the following relief:
a. An Order dispensing with the consent of the Respondent father, Tanner Kevin Graham (“Graham”) for any medical treatment required for the child, Reid David Horst Graham, born March 21, 2016. (“Reid”), including counselling or any other intervention recommended by the child’s counsellor or physician;
b. An Order changing the current parenting regime to provide that Reid reside with his mother until counselling has been initiated and the COVID-19 crisis subsides.
c. An Order that the Respondent have access to Reid via video calls on a daily basis until the COVID-19 crisis subsides.
[2] The second is the motion brought by Graham, asking for an Order requiring McNulty to comply with the final order of Justice Swartz dated February 6, 2019 (the “Final Order”). He additionally seeks an Order providing him with “make-up” time to compensate him for the time lost with Reid as a result of McNulty’s unwillingness to comply with the terms of the Final Order.
[3] 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, until further notice.
[4] This hearing was heard on April 9, 2020 by way of teleconference.
Background:
[5] Justice Swartz made a Final Order in this matter dated February 6, 2019.
[6] The Final Order provides for the parties to have joint custody of Reid, their four-year-old son. The parties have since the date of the Final Order and, in accordance with its terms, shared a week-about access arrangement.
[7] A Motion to Change was commenced by McNulty prior to the suspension of the regular operations of the Ontario Superior Court of Justice. The Case Conference was to have occurred on April 9, 2020 had the regular proceedings not been suspended.
[8] One of the issues raised by McNulty in the Motion to Change concerned her inability to get Graham’s consent to access counselling services from The Phoenix Centre for Children and Families in Pembroke, Ontario, for Reid.
[9] McNulty maintains that Reid began exhibiting some inappropriate behaviours starting in September, 2019, both at home and his daycare. The various behaviors occurred on a number of occasions and consisted of instances of sexualized or aggressive conduct. The concerning behavior exhibited by Reid continued and it was of sufficient concern to the daycare that it made a call to Family & Children’s Services of Renfrew County (the “Society”) in mid-February.
[10] Additionally, McNulty refused to return Reid on March 22, 2020 for his access week with Graham due to the COVID-19 situation. She has retained Reid in her exclusive care since that date. She claims that Graham is not complying with the directives of public health authorities to self-isolate and physical distance. McNulty claims that Graham is exposing Reid to the risks posed by COVID-19 by not appropriately taking steps to minimize his contact with others who may not be complying with the directives.
[11] In particular, McNulty states that the exposures are the result of the following:
a. She stated that Graham, as far as she is aware, has approximately five people living in his house. Two of the people living there are not family members or permanent residents of the household.
b. At least two of the household members may be working and therefore exposing themselves to the virus.
c. She believes some of the household members may not be respecting the imperative of the directives to remain physically distant from others and/or self-isolate.
[12] McNulty’s biggest anxiety seems to arise from Graham’s refusal to disclose who is living in his home and whether or not they are practicing social distancing. She attached to her affidavit materials the contents of text communications between the parties. One, in particular, read as follows:
McNulty:
“Could you please clarify who all is coming and going from your mother’s house, as the whole point with everything going on is to be social distancing. If there are multiple people coming and going then this would defeating the purpose. As well are you still working?”
Graham:
“No, that is for me to manage while he is in my care. I don’t answer to you. From our call the other night and you not being home, your sister now staying with you, and Reid’s busy day on his birthday that you were unable to let me call him it shows how inappropriate your questions are. You are clearly not doing what you’re so worried I will do.”
[13] McNulty maintains that she is minimizing the risks posed by COVID-19 by complying with the directives regarding social distancing and that it is therefore in Reid’s best interests to remain with her at this time.
[14] Graham responds to the McNulty’s allegations as follows:
a. He resides with his mother and sister. Both his girlfriend and his sister’s boyfriend have been staying with them during this crisis. He maintains that they are all complying with the directives regarding social distancing.
b. None of the individuals residing with him are presently working in circumstances which would pose any unnecessary or significant risk of exposure for Reid.
c. He has concerns that McNulty is not abiding by the directives regarding social distancing.
Analysis:
[15] 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.
[16] 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.
[17] “Urgent” is defined to include:
a. Requests for urgent relief relating to the safety of a child or parent (e.g. a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b. Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.
[18] I find that the issue of whether McNulty should be specifically authorized to secure counselling for Reid through the Phoenix Centre for Children and Families to be sufficiently pressing to constitute the requirement of urgency.
[19] Similarly, I find that an urgent motion is warranted on this issue of whether Graham’s access time should be varied and effectively suspended, temporarily, due to McNulty’s allegations that Graham is exposing Reid to significant risk, due to 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 McNulty intends to deny Graham access with Reid indefinitely in light of the pandemic. I accept that this denial of contact, along with the evidentiary basis supporting apparent risks caused to the safety and well-being of Reid, are of sufficient gravity to Reid’s best interests to be considered urgent.
[20] With respect to both of these issues, I find that both warrant leave being granted to have such issues determined on a temporary basis prior to holding a case conference.
Counselling through the Phoenix Centre for Children and Families:
[21] At the conclusion of hearing argument in this matter, I asked counsel to determine whether, in light of the closure of services due to directives, if it was even possible to access services for Reid from the Phoenix Centre for Children and Families at this time.
[22] Graham has indicated his agreement to accessing such services for Reid at this time, if available remotely or in person once the government permits same provided that the counsellor conducts an intake appointment with Graham and McNulty executes an authorization permitting the counsellor to communicate directly with Graham.
[23] McNulty is agreeable to both parties participating in the intake process. She would prefer it be conducted jointly. She agrees to providing any written authority to allow Graham to have contact with the counsellor directly.
[24] On this basis, an Order shall issue directing that Reid shall be entitled to access such counselling services as may be offered and/or available through the Phoenix Centre for Children and Families, in Pembroke Ontario. Such services may be conducted remotely in light of the current directives during the COVID-19 pandemic, if such services available, or in person, on the directives for social distancing have been lifted. Both parties shall participate in the intake process with the Phoenix Centre for Children and Families, either jointly or independent from each other as might be determined most appropriate by the Phoenix Centre for Children and Families and in its discretion. Both parties shall provide what authorizations are required to allow the counsellor to communicate with the other party.
Custody/Access arrangement during COVID:
[25] In this instance, there is an existing order in this matter which provides for Graham to have Reid in his 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.”
[26] 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 interest of Reid. 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.
[27] Neither party has satisfied me that the other has been ignoring the directives of public health authorities for physical distancing or self-isolating. Both parties appear to be cognizant of the need for same and are attempting to follow the directives at this point, even if there was an initial awkward adjustment to their new “normal.”
[28] As the parent of Reid, it is expected that both parties will take the appropriates steps to insist that all persons within their family unit will take whatever steps are reasonably necessary to ensure that he is not unnecessarily exposed to COVID-19 risks. I am satisfied that this is occurring at present.
[29] The present difficulty between the parties, it would seem, has been spurred on by their inability to communicate with one another in a respectful or cooperative manner. Both parties have conceded that at times their communications with the other has been something less than tempered.
[30] In these unprecedented times, it is natural to be stressed by the recent changes the recent COVID-19 pandemic has wrought on their daily routine. We naturally seek to protect those in our care during such times. Responding to a parent’s inquiries respecting the welfare of one’s child while in the other’s care with a comment such as “I don’t answer to you” is wholly unproductive.
[31] As aptly stated by Justice Pazaratz in Ribeiro v. Wright:
Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.
a. The disruption of our lives is anxiety producing for everyone.
b. It is even more confusing for children who may have a difficult time understanding.
c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.
d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.
e. Right now, families need more cooperation. And less litigation.
[32] I would ask the parties in this instance use this time to reflect on the manner they have been communicating with one another and focus on what they might do to be improve their own contribution to the present conflict for Reid’s sake.
[33] Given both party’s assurances that they are taking the directives seriously and are complying with them, I do not conclude that the present shared arrangement with Reid should be placed “on hold” indefinitely as proposed by McNulty. Such an action would be unnecessarily upsetting for Reid and not consistent with his best interests.
[34] Children need the love, guidance and emotional support of both parents, now more than ever. I do not see any basis to interfere with the ongoing parenting arrangement which is in place with respect to Reid by imposing upon him a new regime which could cause emotional harm and upset.
Order:
[35] A temporary order shall issue as follows:
Leave is granted to have these motions heard with respect to the issue of Reid accessing counselling services through the Phoenix Centre for Children and Family and on the issue of whether the current parenting arrangement should be varied or remain in force. Leave is also granted to have these issues determined on a temporary basis prior to conducting a case conference.
An order shall issue authorizing McNulty to access counselling services for Reid as may be available through the Phoenix Centre for Children and Families, in Pembroke Ontario. Such services may be conducted remotely in light of the current directives during the COVID-19 pandemic, if available, or in person, once the directives for physical distancing have been lifted. Both parties shall participate in the intake process with the Phoenix Centre for Children and Families, either jointly or independently (as might be determined most appropriate by the Phoenix Centre for Children and Families and in its discretion). Both parties shall provide what authorizations are required to allow the counsellor to communicate with the other party.
The week-about access regime between the parties shall resume and all terms of the Order of Justice Swartz respecting the terms of custody and access shall continue. This Order shall be without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise.
Justice M. Fraser
Date: April 14, 2020