Court File and Parties

COURT FILE NO.: FS-19-20515 DATE: 20200416 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rhonda Heywood Applicant – and – Nadim Jallad Respondent

Counsel: K. Robertson, for the Applicant Self-Represented, for the Respondent

HEARD: April 9, 2020 (By Conference Call)

RULING ON MOTION

HEBNER J.

[1] The issue in this matter involves the access of the respondent father to the parties’ child, Tyler Dawn Heywood (“Tyler Dawn”) born January 10, 2008. Tyler Dawn is 12 years of age. The matter first came before me as triage justice by way of a request made by the respondent to proceed with a motion against the applicant for contempt during the period of time that this court had suspended sittings due to the COVID-19 global pandemic. On March 31, 2020, I found that the issue on the motion was urgent and could proceed. The motion proceeded by way of conference call on April 9, 2020. This is my ruling on the motion.

[2] I note that prior to the hearing of the motion, the respondent had filed his notice of motion and unsworn affidavit. The applicant filed her responding unsworn affidavit. The respondent filed a reply affidavit, also unsworn. During the conference call, the applicant and the respondent affirmed the contents of their affidavits before me.

BACKGROUND FACTS

[3] The final order in place dealing with custody of and access to Tyler Dawn is that of George J., dated January 31, 2018. The salient portions of that order provide as follows:

1. The applicant mother has sole custody of Tyler Dawn;
2. The respondent father is to have access with Tyler Dawn to include the following: a) alternate weekends from Friday at 6:00 p.m. until Sunday at 7:00 p.m. and, if Monday is a statutory holiday, until Monday at 7:00 p.m.; and b) one half of March break.
3. When Tyler Dawn is with one parent, the other parent is entitled to contact by telephone, FaceTime or Skype every other day.
4. All access exchanges are to occur in London at a designated Tim Hortons.

[4] The respondent launched his motion for contempt as the applicant refused to allow access to take place as scheduled during March break.

ACCESS BREAKDOWN

[5] The respondent father brought a previous motion for contempt first returnable January 3, 2020. I understand the allegations were similar, namely that access did not take place. The matter came before Howard J. on January 3, 2020. Howard J. found that the issue was not urgent and a case conference must be held. A case conference was scheduled but has not yet taken place. Instead, the parties agreed to proceed with mediation at Bridging Family Conflict.

[6] A mediation meeting took place on February 10, 2020, where it was agreed that a social worker would meet with Tyler Dawn so as to independently obtain her wishes. I take from that that Tyler Dawn possibly wished a different access arrangement take place rather than the arrangement set out in the order. I am told that Tyler Dawn has met with the social worker. A mediation date was set for April 8, 2020 with the social worker then to advise as to Tyler Dawn’s wishes. Bridging Family Conflict is prepared to conduct mediations remotely. Following the service of his notice of motion, the respondent refused to take part in that continued mediation and accordingly it did not take place.

[7] The respondent makes his living as a snowboard instructor. I take it from the material filed that Tyler Dawn is a gifted downhill skier or snowboarder and takes part in races.

[8] The breakdown in the March break access is documented in an email string between the parties. The respondent father intended to take Tyler Dawn to Mont Tremblant during March break. Arrangements were made for Tyler Dawn to be with the respondent father from Monday, March 16, 2020 through to Sunday, March 22, 2020. In the days leading up to Wednesday, March 11, 2020, the parties exchanged several emails confirming the particulars of the arrangements. Then, on March 11, 2020, the World Health Organization declared COVID-19 a pandemic. Thereafter, the following communications took place between the parties by email:

March 13, 2020 – applicant to respondent: “Are you still planning on going away on vacation with all that’s going on?”

March 15, 2020 – applicant to respondent: “ I’ve sent you an email a few days ago regarding your travel plans, with no response from you. I’ve been waiting to hear from you, so we can make the best decision in regards to the health and safety of our child, my family and our community.

I haven’t heard from you and your decision if you will be travelling or not. We have had no communication about what’s been happening, and what you plan on doing.

I do not agree with all that’s going on, and with our daughter travelling at this time. I would think the responsible thing to do here, would be to communicate and confer your plans and what your intentions are with Tyler Dawn during this time.

We were suppose to meet tomorrow at noon. I’m thinking we should wait a couple of day’s (sic) to see what happens, as our situation with the Covid-19 is changing rapidly by the day.”

March 15, 2020 – respondent to applicant: “I responded earlier today, stating that we were not going to Tremblant. We can meet on Wednesday March 18th at 12PM in London, sticking to the minimum in the court order.”

March 15, 2020 – applicant to respondent: “ What are you thoughts about what’s going on?”

March 15, 2020 – applicant to respondent: “I read that one of your liftys at Blue Mountain has tested positive for the covid-19 virus. And another employee at beaver valley resort was tested positive as well. I’m concerned as you live in a tourist community, and you travelling so some much for work. What plans and precautions have you taken or are planning to take over the March Break.

Have you been reading and paying attention to what’s happening around the world? Social distance is very important and one that is a responsibility of ours to protect our communities and our family.

I think clear communication is very imperative right now. As it always should be. But especially at this time during an (sic) pandemic.

How do you plan on making sure we are doing our part. I really believe that everyone should be staying away from traveling.

Please let me know your thoughts on all this??”

March 15, 2020 – applicant to respondent: “You can always Skype, FaceTime, Call and text your daughter. We got her a phone with a line over a year ago and you don’t seem to take advantage of other means of communication you have available to you to be in contact with your daughter between visits and during.

Everyone’s plans have been put on hold. Not just yours. And for good reason.”

March 16, 2020 – respondent to applicant: “My thoughts are that I haven't been within 5 feet of anyone outside my family since Tyler a couple weeks ago. I haven't been to the resort since I dropped Tyler off. While your concerns are valid in their own merit, they are irrelevant to my situation and your assumptions are inaccurate. I listen to the guidelines that the government has set out, and implement them in my day to day.

I will be picking Tyler up on Wednesday at noon in London to exercise access as per the court order. Unless the government implements laws that prohibit you from driving to London, I expect to see you there.”

March 16, 2020 – applicant to respondent: “We to (sic) are following the guidelines and are doing what’s been asked of us to keep our social distance, and as it’s our responsibility to protect our family and community, (and yours) we are choosing to be responsible and exercise our right to have the decision to travel or not. Any travel that’s not necessary.

You move from City to City, and are in a community that has had positive cases within close distance to you. I suggest you yourself should take care of your family and do the responsible thing for what you feel is right for your family in your community. You clearly don’t see anything wrong with our daughter travelling throughout all of this, to Toronto, Blue Mountain or wherever you may bring her, (you still haven’t told me where she would be staying, only that you’ll start your March break in the GTA where majority of Covid-19 cases have been reported) Where I do. We disagree on this, which concerns me if you were to have her and us coming to a disagreement as to how she should be cared for during this Pandemic. This way I know for a fact she will not be leaving our home as I’ve prepared my household for a community shut down. If you and Emma have not done this, I suggest you do!

Ryan is being relieved of all work because of the covid-19 virus and will be remaining at home with us while we figure out how we are going to make ends meet ourselves with no work.” (balance of email not included)

March 16, 2020 – respondent to applicant: “Okay, I will pick Tyler up from your house on Wednesday at noon.”

[9] The parties exchanged a number of additional emails between March 16 and March 18, 2020, with the applicant continually telling the respondent that Tyler Dawn would be staying home with her, and the respondent continually stating that he would pick Tyler up at noon on Wednesday. The last email from the respondent to the applicant on March 18, 2020 reads as follows:

March 18 – respondent to applicant: “The understanding is that any days Tyler has missed will be made up in full, since you are going against the court order and refusing access to Tyler on March 18, 2020 at noon, in London, and subsequent weekend access in light of the virus. You are in contempt of court, and you will be held accountable. I will expect these days to be made up in full, and so will the judge/mediator.”

[10] There was no access during March break and the respondent has not had access to Tyler since. The respondent has had almost daily contact with Tyler Dawn through FaceTime, telephone and an on-line game.

ACCESS DURING COVID 19 PANDEMIC

[11] There have already been a number of reported cases dealing with access during the pandemic. On March 24, 2020, Pazaratz J. released a ruling on the question of urgency in Ribeiro v. Wright, 2020 ONSC 1918, 2020 CarswellOnt 4833. In that case, mother took it upon herself to suspend father’s access to their nine-year-old son as a result of the COVID-19 pandemic. Pazaratz J. made the following insightful comments:

• Where there is an existing order, there is a presumption that it must be complied with;
• on the other hand, given the global pandemic, our daily routines and activities must be suspended;
• each family will have its own unique issues and complications;
• in each case, we must find a way to safely maintain important parental relationships;
• a custodial parent ought not to assume that the global pandemic will automatically result in a suspension of access;

[12] Pazaratz J. points out that each case will have to be dealt with on its own. He sets out the following procedure:

1. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
2. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
4. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

[13] I will proceed with my analysis of the facts in this case using the procedure outlined by Pazaratz J.

ANALYSIS

[14] According to the applicant, she and her husband have been self-isolating since March 13, 2020. They reside on a large country lot outside of Windsor, Ontario with Tyler Dawn and their two children, aged two-and-a-half and aged eight. The applicant’s husband is an ironworker who has been laid off since March 27, 2020. Tyler Dawn will be attending school on-line and the applicant will be monitoring her progress. The applicant has raised concerns about the respondent’s continued access with Tyler Dawn during the pandemic, outlined in her material.

[15] The first step is to consider the applicant’s evidence with respect to plans or behaviour of the respondent that are inconsistent with the COVID-19 protocols. In her argument, counsel for the applicant asserts three points: she asserts that the respondent has a transient lifestyle; she raises concerns that the respondent is not following the social distancing protocols; she raises a concern about the transportation arrangements between Windsor and Blue Mountain. I shall address each of these three points in turn.

Transient Lifestyle

[16] The respondent is a snowboard instructor. The respondent’s permanent residence is with his father in Mississauga. During snowboarding season, he works at, and resides at, Blue Mountain. The respondent’s girlfriend resides in rental accommodations at 206 Yellow Birch Crescent, Blue Mountain (“the Yellow Birch home”). She has been residing at this residence for approximately four to five months, while the respondent completes renovations in a home she owns down the street.

[17] The respondent denies having a transient lifestyle. His evidence is that for the past three weeks he and his father have been staying with his girlfriend at the Yellow Birch home. In argument, the respondent said that when the pandemic was declared, he and his father made a decision to move to Blue Mountain to stay with his girlfriend because his father’s residence in Mississauga is in an apartment building. The Yellow Birch home is a single-family residence. He said that his intention was to stay there with his father, his girlfriend and his girlfriend’s child until the pandemic was over. He intends to exercise his access at this residence.

[18] The respondent did not provide any evidence of steps taken at the Yellow Birch home to ensure that the home remains virus free, such as the use of disinfectants and handwashing. He simply said that he takes “all precautions”.

Social Distancing

[19] According to the respondent, he and his father attend at the home owned by the respondent’s girlfriend each day to work on the renovations. The home owned by the respondent’s girlfriend is approximately a six-minute drive from the Yellow Birch home. The respondent said that he and his father are the only workers on site. He is not outsourcing work to other tradespeople. For the most part, when needed, he has materials delivered to the job site.

[20] As for social distancing measures, the respondent offered the following evidence at paragraphs 37 and 38 of his reply affidavit:

“Everyone residing at 206 Yellow Birch limits their exposure and follows all the available guidelines closely. We are refraining from physical contact with anyone outside of where I am staying. Essentials and groceries are delivered. Everyone is doing their best to minimize exposure.

Historically, yes, I do go to see friends and family with Tyler during our access visits to maintain important friendships and family connections. Presently due to the pandemic I would not.”

Transportation

[21] The drive from Windsor to Blue Mountain takes five hours. The respondent takes the position that the order respecting transportation arrangements ought to continue – namely that the applicant ought to drive Tyler Dawn to London for the access exchange. The applicant takes the position that she ought not to be required to drive to London during the pandemic – that she has two children at home, that her family is self isolating and that she cannot take the risk of bringing the virus home to her family.

[22] The respondent did not provide evidence respecting the vehicle he intends to use for his share of the transportation, what other individuals may use that vehicle or have access to it, or steps he takes to disinfect the interior of the vehicle. He said his plans for travel are to use full-service gas stations, travel with gloves and hand sanitizer and to bring snacks so it is unnecessary to stop for food. When asked about plans for a bathroom, he suggested the side of the road.

CONCLUSIONS

[23] In my view, the applicant has set out examples where the respondent’s plans do not sufficiently comply with the government COVID-19 protocols. Also in my view, the respondent has not sufficiently answered those concerns.

[24] There are two primary concerns that I have with the respondent’s plans.

[25] With respect to transportation, I find it unreasonable to require the applicant to drive Tyler Dawn to London for the access exchange during a global pandemic. Doing so puts the respondent, Tyler Dawn, the respondent’s husband and her two younger children at risk of exposure. Moreover, I do not accept that it will be unnecessary for Tyler Dawn to use a bathroom during a five-hour drive between Windsor and Blue Mountain. In my view, it is only reasonable to assume that there will be stops where the respondent and Tyler Dawn will be at risk of exposure.

[26] In addition, I have some concern with the respondent continuing to work, alongside his father, during the pandemic. I do not accept that there is no contact between these two men and others while they work on renovations at the home of the respondent’s girlfriend. This behaviour is not self isolation and every time the respondent and his father attend for work or pick up supplies and tools, they are at risk of exposure.

[27] This court’s only concern is the safety and best interests of Tyler Dawn. While it is vitally important, particularly in these challenging times, that important parental relationships continue and that children have the benefit of ongoing contact with both of their parents, this needs to be balanced against the added risk of exposure to the COVID-19 virus, to not only the child but family members. In this case, in my view, the increased risk to Tyler Dawn and both sides of her family by travel required for access purposes and by the respondent father’s continued work outside of his home require that the current face-to-face access regime be suspended.

[28] In coming to this conclusion, I have taken into account the following:

1. The applicant mother has made significant arrangements for Tyler Dawn to have contact with her father remotely. She has done so voluntarily, and can be trusted to continue to do so. I am therefore satisfied that the relationship between Tyler Dawn and her father will continue to thrive through remote contact until physical access can resume.
2. Tyler Dawn is 12 years of age. Given the outstanding proceeding and the mediation, and particularly the arrangements that were made for Tyler Dawn to speak with a social worker as to her wishes, it is reasonable to assume that she has expressed, at least to her mother, her wish for a different access regime than that set out in the current order. Unfortunately, I was not given any independent information as to her wishes. We might have had that information had the respondent not cancelled the mediation scheduled for April 8, 2020.

[29] The respondent’s motion requests an order that the applicant be found in contempt of the access order. In Ruffolo v. David, 2019 ONCA 385, the Court of Appeal dealt with allegations of contempt of an access order. At paragraphs 18 and 19 the court said:

We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 (S.C.C.), at para. 36, contempt orders should not be so readily granted by motion judges:

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, "a court's outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect." As this Court has affirmed, "contempt of court cannot be reduced to a mere means of enforcing judgments." Rather, it should be used "cautiously and with great restraint". It is an enforcement power of last rather than first resort". [Citations omitted.]

Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration.

[30] In that passage, the court provided assistance to motions judges dealing with a request that a custodial parent be held in contempt for refusing access. Here, the order for access is clear and the applicant refused to follow it. However, she had justified reasons for doing so, particularly the safety and best interests of the parties’ daughter. Tyler Dawn’s best interests must be the paramount consideration and, for the reasons I have explained above, it is not in Tyler Dawn’s best interests for the access to continue as ordered during the COVID-19 pandemic.

[31] For all of the foregoing reasons, I decline to find the applicant in contempt and the respondent’s motion is dismissed. I point out that this decision does not affect the current outstanding contempt motion, which I expect to be resolved once this court resumes regular operations. I encourage the parties to return to mediation in an attempt to resolve that matter.

[32] I make the following order:

1. The respondent’s motion is dismissed.
2. The respondent’s alternating weekend access with Tyler Dawn is suspended for a period of four weeks. In the event the current travel and other provincial restrictions are lifted to the point where the applicant is content that access resume by May 15, 2020, then the respondent’s alternating weekend access shall continue with the holiday weekend of May 16 – 18, 2020.
3. In the event the applicant seeks an extension of the suspension of access she may return the matter to me by way of a brief conference call during the week of May 11, 2020.

Electronic Signature signed and released by Hebner J. Pamela L. Hebner Justice Released: April 16, 2020