COURT FILE NO.: FC-18-FS-000582-0001 DATE: 2020-04-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: T.E., Applicant AND: M.R., Respondent
BEFORE: Madam Justice J.D. Walters
COUNSEL: Ray Wrubel, Counsel for Applicant S. Swaby, agent for T. Miller, Counsel for Respondent
HEARD: By Teleconference April 15, 2020 10:28 a.m. until 11:45 a.m.
Endorsement
[1] This matter came before me as a result of Justice Madsen’s endorsement of April 2, 2020 finding the matter met the test of urgency and specifically stating “In my view, applying the Notice to the Profession and the developing caselaw on this issue, and having regard to the separation agreement in evidence at this time, the motion brought by [M.R.] is urgent.”
[2] Included in Justice Madsen’s endorsement was a timeline for the parties to file their material.
[3] In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by both parties, details of which are set out below.
[4] The Respondent (“mother’’) brought a motion returnable March 31, 2020 whereby she sought the following substantive relief:
(a) An order abridging the time for service and filing of this motion if necessary. (b) An order that service of the motion materials on the father’s counsel, Ray Wrubel, to wrubelaw@rogers.com be validated. The father’s counsel may be served by email to wrubelaw@rogers.com. The mother may be served by email through her counsel, Tracy Miller, at tracy@miller-law.ca. (c) An order allowing affidavits in this matter to be commissioned by telephone during the COVID-19 situation in Ontario. (d) An order that W., born […], 2012 (age 7) and O., born […], 2014 (age 6) be returned to the Mother’s primary care immediately. (e) An order that the Waterloo Regional Police, the Ontario Provincial Police, and any other necessary police force shall assist as required with the enforcement of the terms of the Order and shall take all action as required to locate, apprehend, and deliver the children, including the power of search and entry at any time. (f) An order that the father shall have access every other weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m. and every Wednesday from 5:00 p.m. overnight to Thursday morning, to resume as of April 5, 2020. (g) In the alternative, an Order that there be an alternating week arrangement to commence this Friday with the mother for the first week. (h) An order for costs on a substantial indemnity basis.
[5] The Applicant (“father”) in his reply, brought a cross-motion wherein he sought the following relief:
(a) An Order that this motion be heard at the same time as the Respondent’s motion, returnable on the same date. (b) An Order that this motion be heard as an urgent motion in accordance with the present rules of the Ontario Superior Court of Justice during the COVID-19 pandemic. (c) An Order abridging time for service and filing of the within notice of motion and supporting documents, if required. (d) An Order that the Notice of Motion and supporting documents be allowed to be served via email on the Respondent’s lawyer – Tracy Miller at tracy@miller-law.ca (e) An Order that the children of the marriage, W. and O. remain in the care of the Applicant father pending the end of the current Shelter at Home Order in place in Ontario, or such further and other time as the parties may agree. (f) In the alternative to pargraph (e) above, an Order that the children of the marriage, namely W. and O. reside with both parents, on a week-on/week-off basis, pending the end of the current Shelter at home Order in place in Ontario, or such further and other time as the parties may agree. (g) An Order that the mother immediately notify the father in writing should she (i) exhibit any symptoms of COVID-19, (ii) is tested for COVID-19 – and provide the father with the results of said test, and (iii) miss any time from work due to COVID-19 symptoms. (h) In the alternative to paragraph (e) above, an Order that in the event the mother either is required to self isolate and/or tests positive for COVID-19, that the chilren of the marriage, W. and O. shall then forthwith reside with the father until the required self-isolation has been completed by the mother an she has been cleared to return to work. (i) Costs on a substantial indemnity basis. (j) Such further and other relief as counsel for the Applicant may advise and This Honourable Court may permit.
[6] I have received and reviewed the following material:
(a) the mother’s notice of motion dated March 31, 2020; (b) the mother’s affidavit dated March 31, 2020 with Exhibits; (c) the father’s cross motion dated April 6, 2020; (d) the father’s affidavit dated April 6, 2020 with Exhibits; (e) the mother’s reply affidavit dated April 9, 2020 with Exhibits; and (f) the submissions of counsel for the mother and the submissions of counsel for the father.
[7] Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse. I would note that I do not have access to any other portion of the continuing record.
The Parties’ Positions
[8] When this matter was heard by teleconference, the mother’s primary position had changed. Both children had returned to the mother’s care and it was her submission that the children should reside with both parents on a week on and week off basis commencing Friday, April 17, 2020 at 6:00 p.m.
[9] The father’s position is that there should be an Order placing the children in his primary care until the end of the Shelter at Home Order in place in Ontario. In the alternative, the father’s position is that the children should reside with both parents on a week on and week off basis. The father also requests an Order requiring the parties to notify each other in writing if he/she begins to exhibit any COVID-19 symptoms; is tested for COVID-19, and misses work as a result of COVID-19 symptoms.
The Father’s Cross-Motion
[10] The father filed a cross-motion in response to the mother’s motion. Counsel for the father submitted that the father’s motion should be heard at the same time as the mother’s motion. The mother’s motion had been deemed urgent by Justice Madsen on April 2, 2020. It was the father’s position that his motion filed April 6, 2020 deals with the same issue, the placement of the children during the COVID-19 pandemic and therefore the two motions should be heard together.
[11] In Justice Madsen’s endorsement, the father was given until Tuesday April 7, 2020 at 5:00 p.m. to serve and file his responding materials. The mother was given until Thursday April 9, 2020 at 2:00 p.m. to file brief reply materials if any.
[12] The father filed his materials within the timeline and made submissions at the teleconference that the court should deem his motion as urgent, and have it heard at the same time as the mother’s motion.
[13] The mother did not take a position on the father’s cross-motion.
[14] The father was permitted by the court to make submissions on his motion.
[15] The court accepts Mr. Wrubel’s submission that the father’s motion, although filed in reply to the mother’s motion, is dealing with the same issue set out in the mother’s motion. The father’s motion addresses the children’s placement but suggests an alternative line of relief than that sought by the mother and that is primary placement of the children in the care of the father.
[16] Given that this matter was deemed urgent by Justice Madsen regarding the children’s placement, I have found the father’s motion filed in response to the mother’s motion is also urgent and should be heard alongside the mother’s motion.
Brief Background
[17] The parties were married on June 6, 2011.
[18] The parties have two children W. and O. who are 7 and 6 years of age respectively.
[19] The parties separated on July 1, 2013. The children have been in the mother’s primary care since separation.
[20] The parties signed a separation agreement on October 1, 2018, which addressed many of the issues related to their relationship, except where the children would attend school.
[21] The issue of the children’s school was adjourned to an arbitrator.
[22] The separation agreement provides that:
(a) The parties share joint custody of the children. (b) The children shall have their primary residence with the mother. (c) The father’s parenting time shall be alternate weekends from Friday at 5:00 p.m. to Sunday at 7:00 p.m. to be extended to Thursday night at 5:00 p.m. or Monday night at 7:00 p.m. in the event of a holiday or P.A. day. The father shall be responsible for picking up the children from school or daycare for his Thursday/Friday periods of care with the children and the mother shall be responsible for picking the children up at the father’s residence on the Sunday/Monday as the case may be. (d) Included in the father’s parenting time is every Wednesday (overnight) from Wednesday at 5:00 p.m. to drop off at school, on Thursday morning. The mother shall be responsible for dropping off the children at the father’s residence every Wednesday, and the father shall take the children to school every Thursday morning. (e) Commencing summer 2019 the parties began to share the children 50/50 with schedules to be agreed upon by June 1st of each year.
[23] The issue of where the children attend school was determined through arbitration on December 28, 2018.
[24] The children were ordered to attend school in Kenilworth where the mother resides. The father resides in Waterloo.
[25] In September 2019, the decision was made regarding costs of the arbitration. The father was ordered to pay the mother’s costs in the amount of $15,144.88 within 30 days. The father has not made any payment towards the costs.
[26] The father commenced a Motion to Change in the Kitchener Unified Family Court on October 2, 2019. A case conference was held on December 6, 2019.
[27] The parties have been abiding by the terms of the custody and access arrangement as set out in the separation agreement up until March 23, 2020.
[28] On March 23, 2020, the father refused to return the children to the mother.
[29] It is as a result of the father withholding the children from the mother that the mother brought an urgent motion.
The Mother’s Position
[30] It is the mother’s evidence in her affidavits dated March 31, 2020 and April 9, 2020 that the father is trying to change the status quo.
[31] The mother is a healthcare worker. The mother submits that the father has refused to return the children to her because of the increased risk associated with working as a healthcare provider during the COVID-19 pandemic.
[32] The mother submits that the father has taken an unreasonable position and he has tried to alter their custodial arrangements by using COVID-19 to his advantage. He has not accepted the decision made through arbitration for the children to attend school in Kenilworth, Ontario. His inability to accept the arbitration decision is evidenced by the Motion to Change brought by the father in October 2019.
[33] There has been conflict in the parties’ relationship, in the past two years in particular, which has involved the police and the Children’s Aid Society.
[34] The child, W. has also been having difficulty which required the involvement of the Canadian Mental Health Association (“CMHA”). They made recommendations which included the involvement of the Children’s Aid Society so that W. could be followed by a social worker. W. was having suicidal thoughts, as well as thoughts of killing his sister, which resulted in the establishment of a safety plan.
[35] The mother submits that, although W.’s behaviour has been improving in the past two months, a structured daily routine is extremely important for him.
[36] It is the mother’s position that the father’s unilateral actions taken on his belief that the mother is a risk to the health of her children, specifically threatens W.’s mental health and the progress he has made.
[37] The mother submits that the father believes he is justified in taking matters into his own hands since she is a healthcare worker and new paper articles show healthcare workers are at an increased risk. He has cited a CTV news article and an article from Waterloo Region Record as his authority, as well as a Facebook posts from one healthcare provider, having no regard to her personal circumstances and experience. It is the mother’s position that this is not proper evidence before the court.
[38] The mother submits that during her 15 years of employment as a healthcare worker she has never infected her family members. She is trained in the use of personal protective equipment (“PPE”) and how to protect against potential risk.
[39] The mother submits that she is a Registered Practical Nurse and Perioperative Nurse at Grand River Hospital (“GRH”). She is not a front-line worker. She works in the operating room as a scrub nurse and she does not have any COVID-19 patients. The only way she would come in contact is in an emergency situation where a patient needed surgery to save their life. There is a specific COVID-19 room in the operating room (“OR”) with a special filter and proper personal protective equipment, and policies to deal with these cases if needed.
[40] The mother submits that she is proficient and diligent in hand hygiene, works in a sterile environment and understands how contagions transfer and actively works to avoid this.
[41] The mother submits that she has taken additional precautionary measures to prevent any contamination due to COVID-19. Some of those measure she submits include practicing social distancing, carrying disinfectant and hand sanitizer and wiping down all surfaces in her home and vehicle.
[42] The mother also submits that the father has been speaking to the children about the mother’s job and COVID-19 and has told them that she will make them sick.
[43] While the children were kept by the father at his home, he did allow the mother to drop by his home to see the children. The mother submits that when she attended his home to see the children they ran out of the home and gave her a hug. The father also agreed that they could go for a walk. While on the walk, O. kept asking her when she could return home.
[44] The mother submits that W. has said to her, “nurses and doctors are dying mom. Your mask does not work. You are going to make us sick and we can die.”
[45] In the mother’s affidavit dated April 9, 2020, the mother describes inappropriate interactions between the mother and the father in front of the children.
[46] The mother submits that this abrupt disruption in the children’s lives caused by the father’s actions over the past three weeks has affected the children’s mental health. Well before COVID-19, W. has been experiencing difficulties that has required interventions from the CMHA.
[47] As a result of the father’s refusal to return the children to the care of the mother, this motion was brought. When the teleconference was held, both children had returned to the mother’s care.
[48] Given there is no court order in place, the mother submits that the father could decide at anytime to take matters into his own hands again. As a result, the mother seeks a court order setting out the custody and access arrangements. The mother also seeks a police clause to ensure the father’s compliance, especially since he has called the police in the past.
[49] While the children remain out of school, the mother submits that it would be in the children’s best interests to share their time with their parents on a week on week off basis, as is set out in the separation agreement for summer access.
[50] The mother also seeks specific wording from the court regarding the exchange of the children as she does not want the children to be exposed to conflict.
The Father’s Position
[51] In response to the mother’s motion, the father filed a cross-motion and an affidavit dated April 6, 2020. He seeks a court order placing the children in his care until the Covid-19 pandemic is over. He submits that he is not trying to change the status quo he is simply trying to keep his children safe at a time when the mother is at an increased risk of contracting this disease due to her profession as a healthcare worker.
[52] The father submits that the mother’s profession puts her at an increased risk and since others in her profession are self-isolating for the sake of their families the mother should do the same while the Stay at Home Order is in effect in Ontario.
[53] The evidence that the father relies upon is a Facebook post from someone in the healthcare field saying that she has chosen not to see her children during this time.
[54] The father also relies upon newspaper articles setting out statistics regarding the COVID-19 pandemic and the number of healthcare workers contracting the disease.
[55] The father submits that the court must consider the case of Ribeiro v. Wright, 2020 ONSC 1829 dated March 24, 2020 of Pazaratz J. where at paragraph 21 the court sets out what courts should consider when assessing custody and access cases impacted by COVID-19.
[56] Paragraph 21 states, “We will deal with COVID-19 parenting issues on a case by case basis.
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols. b. 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. c. 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. d. 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.
[57] The father also cites paragraph 13 of Ribeiro v. Wright where it states, “In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.”
[58] The father submits that he is not trying to change the status quo. He is simply asking for a temporary arrangement to be put in place while the province of Ontario has the Stay at home Order in place.
[59] The father submits that these are different times. That the country has never faced a medical issue like this before and there is no known cure. The mother is in a profession that puts her at heightened risk to catch the virus. The father’s main concern is his children and that the mother cannot guarantee that she will not get COVID-19.
[60] The father submits that he is not working. He is staying at home except for having to go to the grocery store.
[61] In the father’s affidavit he did indicate that he took the children to his work place and the grocery store while they have been in his care.
[62] While the father has sympathy for the mother’s profession, she is at a greater risk to be exposed to this illness and it is in the best interests of the children to remain with him.
[63] The father acknowledges that he should not have kept the children from returning to the mother as he did, however, in hysteria that is what he decided to do. The children have since returned to their mother’s care.
[64] The father submits that other than the events during the COVID-19 pandemic there is no history of the father over-holding the children from their mother.
[65] The father submits that he is not working, he is able to care for the children and keep them safe. The mother can have virtual access with them through Skype daily.
[66] Alternatively, the father submits if the court does not find that the children should be placed in the father’s primary care during the Stay at Home Order, he requests that the time be shared 50/50 on a week about bases.
[67] The father also seeks an Order setting out what the parties will do if either of them contracts COVID-19.
Legal Analysis
[68] Since the onset of the global pandemic, COVID-19 in Canada, the well-publicized directives from governments and Public Health make it clear that we are all living in extraordinary times.
[69] Caselaw has been evolving in this area as the courts have had to deal with custody and access disputes on an urgent basis. I have considered Ribeiro v. Wright in my review of this case.
[70] Schools have been suspended and families have been asked to remain in their homes. Many people have lost their jobs while others begin to work from home.
[71] The public has been asked to practice social distancing, remain in their homes except to go out for groceries or attend at the pharmacy. There is no clear answer as to when the current restrictions will be reduced to allow for a gradual return to life as it was before COVID-19.
[72] Currently the Province has extended its Stay at Home Order to May 14, 2020.
[73] What we are being told is that this way of living will likely become our “new normal” until a vaccine can be found and that is not expected for many months.
[74] Added to the stress of a global pandemic and the anxiety that produces is the stress of custody and access litigation for families who are trying to co-parent in these times.
[75] In this case, the parties were able to negotiate a separation agreement in 2018. Based on the evidence before me they have been following that agreement up until March 23, 2020 when the father decided to take matters into his own hands.
[76] The father’s explanation for over-holding the children was that he was caught up in the hysteria related to COVID-19 and the added stress that mother’s profession of working in the healthcare field causes him.
[77] I do not accept the father’s explanation for keeping the children from their mother. I do not accept that the father has the best interests of the children in mind when he discusses with them that their mother can make them sick.
[78] These are extraordinary times, and it is in extraordinary times that parents must protect their children from harm and be a support for their children, not turning them against the other parent.
[79] I accept the mother’s submissions that the father is using COVID-19 to his advantage.
[80] While the mother’s profession may put her at an increased risk, she, unlike those who do not work in healthcare, is trained to guard against the risk. She also has access to PPE in order to protect herself while at work.
[81] While the children have been in the father’s care, he has taken them to his work place and the grocery store. Public Health has indicated that unless social distancing and good hand hygiene is used, leaving your home can create risk of contracting COVID-19. To guard against the spread of the disease, Ontarians have been asked to stay home.
[82] The mother’s evidence is that she is not working with COVID-19 patients. When she is at work, she follows the hospital protocols and she wears PPE. She is also taking precautions by wiping down her car and any items she brings back to her home each time she leaves her home. I accept the mother’s evidence in that regard.
[83] I do not accept the father’s submissions that it is in the best interests of the children to be placed with him. I do not accept that he is not seeking to change the status quo.
[84] The father commenced a Motion to Change in October 2019. When the Stay at Home Order was issued in March 2020, the father decided to unilaterally keep the children in his care. He never spoke with the mother about this arrangement, he simply took matters into his own hands. He used the mother’s profession as an excuse for his behaviour.
[85] While I appreciate that these are unprecedented times and many families are experiencing increased anxiety as a result, this does not excuse the actions of the father taking matters into his own hands. Children who are the subjects of custody and access disputes need to know, now more than ever, that both parents are there for them to reassure them that everything is going to be okay. They do not need to be thrust in the middle of the conflict.
[86] In order to have the children returned to the mother, the mother had to bring an urgent motion seeking their return.
[87] Although the children were in the care of the mother by the time this matter was argued before me in the teleconference, the father’s position at the teleconference is that the children should be in his care full-time, as the mother poses a potential risk to them by virtue of her work.
[88] I find the father’s position to be unreasonable.
[89] The mother is trying to balance doing her job while also keeping her children safe. Because of her work she is more diligent in ensuring that extra steps are taken to keep her environment clean.
[90] The mother is proposing a week on and week off schedule for as long as the children are out of school. She is proposing that the separation agreement be followed when things begin to return to as they were before COVID-19.
[91] During the week when the children are with the father, the mother proposes that she will work. When the children are with her, she will alter her work schedule to be home with the children as much as her work will allow. This solution is child focused, involves both parents having equal care of the children and in my view is in the children’s best interests. Maintaining a relationship with both parents during this time is more important than ever.
[92] Both parents have set out how they will continue to social distance and practice hand hygiene while the children are in their respective care.
[93] The mother properly brought the matter to court when the father denied her parenting time with the children. The father has offered no basis for me to find that the children would be more at risk with the mother than they would be with him.
[94] Both parents set out in their material that they are adhering to COVID-19 protocols. I echo Justice Pazaratz’s findings at paragraph 26 in Ribeiro v Wright, namely that “While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.” I do not agree with the father that the mother’s employment alone places these children at risk.
[95] The mother is seeking a third party to supervise the exchange of the children from one parent to the other. The father has indicated that that is not necessary. I agree with the father. At the teleconference, the mother could not confirm if the third party that she was proposing was continuing to operate its business.
[96] A proposal was made during the teleconference that the children be picked up at the residence of the parent where they are living by the parent whose week is beginning. The parent picking up the children could remain in the car outside of the home while the children walk from the house to the car thereby eliminating face to face contact between the parents. I agree that this is a good solution.
[97] The mother is also seeking a police clause in the Order in the event that the father decides not to follow the court order. The mother sights previous occasions that the father has contacted the police.
[98] Up until now the parties have been following the custody and access arrangement set out in the separation agreement. While I accept that there is conflict among the parties that has caused past involvement of the police and the Society, there is no current evidence before me that the father has a pattern of over-holding the children.
[99] The only evidence that the father has not followed an Order is that he has not paid the costs as ordered in the arbitration.
[100] The court must be cautious in custody and access proceedings when ordering the assistance of the police in its orders. I agree with Justice Pazaratz and the statements that he made in Mackie v. Crowther, 2019 ONSC 6431, 313 A.C.W.S. (3d) 98 where he states that:
a. If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child? b. Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between waring parents than to have police officers descend on an already inflamed situation. c. Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with “bad guys.” No child wants to think of their parent as being a “bad guy.” And no parent should place a child in such an emotionally conflicted position. d. If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.
[101] I am not prepared to include a police clause in my order.
[102] Should the father over-hold the children again, my dismissal of the mother’s request for a police clause is without prejudice to her to seek such an Order in the future.
Court Order
[103] For all of the reasons set out above I make the following temporary order:
- Commencing Friday, April 17, 2020 at 6:00 p.m. the children (W. and O.) shall reside with the father on a week on week off basis. On Friday, April 24, 2020 at 6:00 p.m. the children shall return to their mother’s care until May 1, 2020. This schedule shall alternate for as long as the Stay at Home Order remains in effect and the children remain out of school.
- The parent whose week is about to begin shall attend at the home where the children are residing and pick them up and transport them to the new home. The parent shall remain in the car outside of the home while the children walk from the house to the car thereby eliminating face to face contact between the parents.
- When the Stay at home Order is lifted and the children may return to school, the children shall be placed in the mother’s primary care in accordance with the separation agreement dated October 1, 2018.
- When the Stay at home Order is lifted and the children return to school, the father’s parenting time shall be every Wednesday from 6:00 p.m. overnight to Thursday morning when he will return them to school. The father shall also have parenting time with the children alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. in accordance with the separation agreement dated October 1, 2018.
- Both parents shall advise the other parent in writing immediately should he/she (a) exhibit any symptoms of COVID-19; (b) is tested for COVID-19 and provide the other with the results of the test as soon as they are known; and (c) miss any time from work due to COVID-19 symptoms.
- In the event that either parent is required to self-isolate and/or tests positive for COVID-19, that the children shall then forthwith reside with the parent who is not required to self-isolate until the parent required to self-isolate has been cleared to return to work or met the requirements set out by the government and public health.
- Neither party shall speak with the children about the court proceedings.
- Neither party shall speak to the children negatively about the other parent.
- Each parent shall only discuss the COVID-19 pandemic with the children in terms that are developmentally appropriate for the children. At no time shall a parent speak to the children about the other parent making them sick.
[104] This matter is adjourned to be spoken to on June 11, 2020 at 10:00 a.m. for the purposes of setting a settlement conference.
[105] Court staff are requested to serve counsel for the parties with a copy of this endorsement by email.
[106] Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, but only orders relating to matters of urgency will be formally issued until the court returns to regular operations.
Justice J.D. Walters DATE: April 17, 2020