Court File and Parties

COURT FILE NO.: F308/20 DATE: April 20, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Marcus John Kirk Agar, applicant AND: Katana Cameron, respondent

BEFORE: MITROW J.

COUNSEL: Stephanie Ouellette for the applicant Katana Cameron not appearing

HEARD: April 17, 2020

Endorsement

[1] This is a continuation of the applicant’s motion for access that was before me as an urgent matter on April 9, 2020 and was adjourned to April 17, 2020.

[2] The applicant and the respondent are the mother and father of a child, who just turned two years of age.

[3] This motion was heard by teleconference pursuant to the protocols in place during the suspension of normal court operations due to COVID-19. The respondent mother has failed to participate in the teleconference on both occasions.

[4] On the first occasion, my endorsement dated April 9, 2020 included the following:

[3] The mother has failed to participate in today’s hearing despite having received from the trial coordinator, and also from the father’s counsel, the necessary details regarding the teleconference. The mother’s decision not to participate is ill-advised. The court is required to determine this motion based on the child’s best interests. If for example the mother has not been able to obtain legal advice, it is still important for the mother to be present at the hearing. Any party always has the option to request an adjournment if that party requires more time. The court will then deal with any adjournment request as appropriate in the circumstances.

[4] The mother is the child’s primary care giver. For that reason alone, she must participate in the hearing of the motion, or risk orders being made in her absence.

[5] Accordingly, the order being made below requires the mother to participate in this hearing on the next court date.

[5] The respondent mother has elected to file no material on the motion.

[6] The applicant served an affidavit sworn March 13, 2020 and he served a supplementary affidavit for the hearing on April 17, 2020. That affidavit was not signed. The applicant participated in the teleconference and, pursuant to the current protocol in place, the applicant was affirmed and testified that the contents of his 18-paragraph affidavit were true and correct. That affidavit did refer to an exhibit consisting of an email chain between the applicant and the respondent. However, the applicant agreed that the exhibit had not been appended to the affidavit, was not served and, accordingly, does not form part of the evidentiary record before me.

[7] During the hearing on April 17, the applicant provided some additional brief evidence orally. The applicant last saw the child in July 2019 at an outdoor location for approximately one to two hours. This had been arranged with the respondent, who was present during the visit. The applicant believes that the last time his mother, the child’s paternal grandmother, saw the child was in April 2019.

[8] The order dated April 9, 2020, in addition to requiring the respondent to participate in the hearing of the motion, included an order that the applicant would have access to the child every day by way of videoconference, with the time to be arranged between the parties having regard to the child’s routine and that the respondent mother shall take all steps to facilitate the access.

[9] In his supplementary affidavit, the applicant deposes that the only videoconference he had with the child pursuant to the order was on April 13, 2020 and that it lasted about six minutes. The applicant believed that the child recognized him and was excited to see him. However, during the visit, the child became ill and, for that reason, the visit was shortened, with the consent of both parties.

[10] The applicant deposes that the respondent gave excuses for her failure to facilitate the court ordered video access, advising the applicant that the child had access to his grandparents (presumably the maternal grandparents) and that the respondent had “personal days.”

[11] It was also the applicant’s evidence that, prior to the order, that the respondent had facilitated video access to the child for about 14 minutes on April 6, 2020 and for about 26 minutes on April 8, 2020. It was the applicant’s belief that this video access was facilitated because the respondent had been served with the motion and there was a court date pending. The applicant referred to the respondent’s boyfriend being in the background during the videoconference.

[12] The evidentiary record includes some email chains of communications between the parties. The applicant attaches an email from the respondent that he states was from August 14, 2019, where the respondent advises that: “You will see your son under my supervision. End of story.”

[13] I am satisfied on the evidentiary record filed thus far that the respondent has failed to promote access in any meaningful way and that the respondent has been obstructing the applicant’s reasonable efforts to have access with the child.

[14] During the hearing on April 17, 2020, the court was advised by the applicant’s counsel, Ms. Ouellette, that she had sent an email that morning to the mother regarding the scheduled teleconference and the father advised that he had also reminded the mother via an electronic message through a platform called “Discord” through which the parties apparently communicate. Further, the respondent would have received notice of this teleconference from the trial coordinator.

[15] The applicant requests that there be face-to-face access and that it takes place at his mother’s residence for a period of two hours each week. The applicant deposes that the child has never been at his home, as that was not permitted by the respondent, but that the child has been at the paternal grandmother’s home which, according to the applicant, is closer to the respondent’s residence than is the applicant’s residence.

[16] It is the applicant’s evidence that the respondent has met his family many times in the past and that the respondent has no issues with the applicant’s mother and brother.

[17] As to his current circumstances, the applicant deposes that he does not drive and is unable to pick up the child for access. The applicant’s proposal is that his mother would facilitate the access. The applicant states that he has an approved car seat, a high chair and other items for the child.

[18] The applicant’s mother is retired. The applicant’s older brother resides with the applicant’s mother and he works from home, as a result of COVID-19. The applicant deposes that his brother’s fiancée works at Western University in a lab, which remains open, and that the University has implemented safety precautions and that his brother’s fiancée is able to practice social distancing.

[19] The applicant describes his living circumstances as living with his current partner, who does not work. The applicant has a roommate, who is employed at a store and works unloading trucks. The applicant deposes that his roommate has been supplied with masks and gloves and that the roommate is abiding by all government protocols regarding COVID-19.

[20] The applicant’s evidence includes also that everyone in his mother’s home, and the applicant and his partner, are all practicing social distancing, handwashing and other protocols implemented by the government during the COVID-19 pandemic. The applicant deposes that in-person access would not pose an increased risk to the child.

[21] The issue arises as to the proper order to be made in the child’s best interests. I must consider, from the child’s perspective, that the child has had minimal recent contact with the applicant and members of the applicant’s family.

[22] Further, I must consider that it is in the best interests of the child to have a meaningful and ongoing relationship with his father.

[23] In these difficult and unprecedented times posed by the COVID-19 pandemic, some usual options available to a court are difficult to implement. Any availability as to supervised access will be very limited.

[24] I find that it is in the child’s best interests to order some minimal weekly in-person access. In addition, there should be ongoing video access, which the applicant proposes should occur on alternate days.

[25] The respondent’s failure to comply with the previous order, in particular as it relates to video conferencing, is most troubling.

[26] The respondent is warned, respectfully, that an order must be obeyed – it is not a suggestion to be followed at the respondent’s whim. The respondent needs to be aware that enforcement measures are available to ensure compliance with court orders, which may include a police assistance order and/or potentially very serious sanctions against the respondent in the event that the applicant brings a motion for contempt and the court finds the respondent to be in contempt of court.

[27] The respondent is urged to seek legal advice regarding her conduct to date and the consequences that may follow if non-compliance with court orders continues.

[28] The order below requires this matter to be returnable before me to provide an update as to compliance with the access order.

[29] The applicant’s counsel should forward a copy of the draft order, in Word format, for electronic signature.

[30] I make the following temporary order:

1. The applicant shall have interim access to the child once a week for a period of two hours from noon to 2 p.m. The access shall occur every Thursday, commencing April 23, 2020. However, the parties may, if they both agree in writing, change the day on which access occurs and/or the time of the day that the access occurs.
2. For the purpose of exercising in-person access, the applicant shall ensure that all government and health authority protocols regarding COVID-19 are observed and followed.
3. The access shall be exercised at the residence of the applicant’s mother, Maureen Lakhan.
4. All access exchanges shall occur at the residence of the respondent. The only persons who shall be present in the vehicle picking up and returning the child shall be the applicant, as passenger, and the driver of the car, which shall be the applicant’s mother or, if she is not available, the applicant’s older brother, Marlon Lakhan.
5. While access is occurring at the applicant’s mother’s residence, no one else shall be present other than the applicant, the applicant’s mother and the applicant’s older brother, Marlon Lakhan.
6. The respondent forthwith shall confirm her current address to the applicant and his counsel via email.
7. The applicant shall have access to the child by way of videoconference three times per week, being every Sunday, Tuesday and Friday at 4 p.m. The parties are at liberty to agree, in writing, to different days and/or times. The respondent shall take all necessary steps to facilitate the videoconference.
8. This motion is adjourned before me via teleconference to Tuesday, May 5, 2020 at 11:15 a.m., with the trial coordinator to advise the parties as to the call-in details and, if necessary, the trial coordinator may change the time of the teleconference.
9. The respondent shall participate in the teleconference.
10. By noon on Friday, May 1, 2020, either party may serve a brief affidavit updating the court as to any relevant developments since the date of this order.
11. The applicant shall serve the endorsement and signed order on the respondent by email and regular mail and shall forward proof of service to the trial coordinator.

“Justice Victor Mitrow” Justice Victor Mitrow Date: April 20, 2020