Court File and Parties

COURT FILE NO.: FC-19-1713-0 DATE: April 22, 2020 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Angèle Sylvie Marie Lafond, Applicant AND Jean-François Blouin, Respondent

BEFORE: The Honourable A. Doyle

COUNSEL: Jillian Allen, Counsel for the Applicant Self-represented

HEARD: April 21, 2020 by phone conference

Endorsement

[1] There are two motions before the Court deemed urgent by Justice J. Audet on April 15, 2020.

[2] The Applicant mother seeks the immediate return of the children to her care in accordance with the parenting schedule of 2-2-3 contained in the parties’ separation agreement’s parenting schedule of 2-2-3 and further varied by the interim parenting agreement. In the alternative, she is requesting a week on/week off parenting schedule. She is also seeking child support in the amount of $1377 per month commencing May 1, 2020 and police enforcement of the terms of the Order.

[3] The Respondent father seeks a variation of the parenting provisions and is requesting temporary custody of the parties’ children. He is requesting that until the state of emergency has been lifted in Ottawa, the mother would have the children for a supervised visit one day per weekend.

[4] I have considered the following materials:

• the mother’s affidavit and financial statement dated August 26, 2019;
• The father’s affidavit dated April 9, 2020;
• The father’s reply affidavit of April 17, 2020; and
• The father’s financial statement sworn October 11, 2019.

Brief Background

[5] The parties commenced cohabiting in April 2009. They separated on May 1, 2016.

[6] The parties have two children of the relationship: Chloe Blouin born November 26, 2012 and Annabelle Blouin born January 6, 2011 (“the children”). The mother has a child from a previous relationship Jasmine Bruyea, born July 11, 2006, who the Respondent father has stood in the place of a parent. The mother and the biological father of Jasmine have joint custody of Jasmine. Jasmine is currently with her grandmother.

[7] The parties’ separation agreement dated May 19, 2016 provided for the following:

• The parties would have joint custody of the children with a shared parenting arrangement whereby the children would be with their mother during the father’s scheduled work time and with the father on the other days;
• The children had a 2-2-3 parenting schedule with their parents; and
• The schedule could be reviewed and changed at any time with the consent of both parties.

[8] The interim parenting agreement dated August 26, 2019 provided for the children to attend a school in the Carleton Place district where the father lives with his wife and her two children. The father was responsible for all the transportation of the children to and from school when the children were with either parent.

[9] By the order of Justice J. Mackinnon dated December 5, 2019, the Children’s Aid Society’s (CAS) records were to be released to the parties and the mother was to provide financial disclosure. The next step was to be a motion to deal with the issues of parenting and child support. It was scheduled for April 23rd, 2020 but has been adjourned to June 2020 due to the Notice to the Profession published by the Chief Justice of the Superior Court of Justice on March 15, 2020 due to the COVID-19 pandemic.

Father’s Position

[10] The father’s position is that the mother has failed to follow the COVID-19 directives including social distancing for herself and the children. The father was concerned that, following the announcement of the pandemic on March 11, 2020 by the World Health Organization, as to whether the mother was adhering to the COVID-19 protocols. The mother was at the shelter and assured him that precautions were being taken by the shelter where she was staying.

[11] On March 24th the father viewed an article in the Citizen newspaper where the mother was describing the health risks of her living conditions in the shelter she was residing.

[12] On March 27th the father wrote to the mother’s lawyer expressing concerns and requesting an adjustment of the parenting schedule to minimize the risks to the children and his own family. The father states that he and his wife suffer from diabetes, obesity, high blood pressure, sleep apnea, recurrent pneumonia, heart arrhythmias, and asthma. No medical reports were filed.

[13] He cites a number of examples where the mother has not been following the COVID-19 directives: the mother allowed Jasmine to attend a drug store on her own and the mother and children were transported by her step-father.

[14] He learned on April 3, 2020 when he was dropping off the children that her boyfriend who was in 14 day self-isolation status after having returned from New York brought her groceries and had physical contact with her and the children.

[15] In addition, he indicates that is he unable to co-parent with the mother and that there has been past issues with the mother. For example, he withheld the children on one previous occasion in October 2017 on the advice of the CAS as they had concerns with her parenting (transiency/housing, mental health, safety network).

[16] He alleges that the mother has been verbally abusive to him and recently physically assaulted him. He continues to worry about her unstable housing as he has been evicted on multiple occasions.

[17] The interim parenting agreement dealing with what school the children could attend in September 2019 was as a result of the fact that neither parent was in the catchment area of the children’s previous school.

Mother’s Position

[18] The mother states that despite her living situation, she has been complying with the COVID-19 directives.

[19] She had been residing at the Travel Lodge Ottawa West, a shelter, for the past year.

[20] On March 27th, the mother and the children were moved, along with other residents, to the Marriot Hotel and she chose to have her stepfather transport them rather than the taxi vans.

[21] Since they were busy moving their belongings, the mother allowed Jasmine to go to Shoppers Drug Mart to pick up her prescription. Jasmine is aware of her need to social distance herself.

[22] The mother and children have been at the Marriot in Kanata since March 28th.

[23] They have a suite with a full kitchen and laundry facilities and an outside patio. It is like living in an apartment building.

[24] There are no common areas, they use hand sanitizers and the children are instructed not to touch outside surfaces.

[25] Her boyfriend was in self isolation for 16 days. He delivered groceries on March 29 having arrived back in Canada on March 14th.

[26] The mother admits to using Uber on one occasion on April 4th and made sure Chloe did not touch anything. She now has a bicycle with a cargo basket which she uses to run errands. Her boyfriend Rick came to retrieve Jasmine’s belongings and the children ran to the door and hugged their sister and she told them not to do this again.

[27] She denies the father’s allegations that the children do not do their homework.

[28] Father refused to return the children on April 10th and has not seen the children since that time. She says she takes the government health advisories seriously.

[29] She states that she had no choice but to allow the children to attend a school in Carleton Place as he unilaterally removed the children from their previous school. The father has refused to pay child support.

[30] As of March 19th, the shelter shut down all public areas and no visitors were permitted and the children were not allowed to have play dates.

[31] She permitted Jasmine to live with her mother as Jasmine has anxiety and anger management issues and this would avoid her going back and forth.

[32] She requires child support. The father earns $96,798 per annum according to his 2018 Notice of Assessment. Her 2018 income was $12,585 from government benefits and social assistance.

Analysis

Parenting

[33] The outbreak of the COVID-19 pandemic has resulted in a dramatic change in individuals’ daily living.

[34] The best interests of the children continues to be the governing principle when determining parenting arrangements.

[35] The Court finds that it is in the best interests of the children that the parents continue to have the children on a shared parenting arrangement.

[36] The status quo whereby the children were enjoying maximum contact with their parents should not be lightly interfered with unless there are compelling reasons to do so. In this case, the evidence confirms that the shared parenting arrangements should continue in order that the children benefit from both parents’ love and guidance during these turbulent times.

[37] I accept the mother’s explanations regarding the father’s allegations. I note that the protocol has evolved over time and that the current measures were stricter than what was first announced in mid-March 2020.

[38] It is not unreasonable for the mother to ask her step-father to facilitate transportation in lieu of using the public transportation provided by the shelter in their move to the Marriott. She has taken the appropriate precautions in her living quarters so that the children’s exposure to any risk is minimized. Her boyfriend had properly self-isolated as required upon his return from the States.

[39] There was technically a breach of the COVID-19 protocol when the children hugged their sister Jasmine when she came to their place with their step-father. I accept the mother’s explanation that it was a short encounter and was not in her control at the time.

[40] At this stage, the Court is focussing on the impact of the COVID-19 pandemic on the children’s time with their parents. A review of the record indicates that the parties are engaged in a custody dispute that was to be determined at on an interim motion scheduled for April 23rd (“full motion”) that could not proceed due to the adjournment of all matters pursuant to the Chief Justice’s Notice to the Profession dated March 15, 2020.

[41] At the time of the hearing of the full motion, the Court will be in a position to deal with the parents’ allegations of inability to co-parent and past issues. At this stage, as a result of the pandemic, the Court will deal with the parenting arrangements pending the return of the full motion.

[42] Therefore, for the reasons that follow, the most appropriate parenting schedule while the children are not in school is for the parties to have a week on / week off arrangement

• It is in the best interests of the children that both parents continue to be fully involved in their lives as they have been since their separation;
• Both parents have confirmed that they are prepared to follow the COVID-19 directives;
• The fact that the mother lives in a hotel suite similar to an apartment setting does not disqualify her from parenting the children so long as she follows the directives set out by the various levels of government during the emergency measures;
• Specifically, the children are living in a shelter in Kanata with their mother with other families and that also functions as a hotel. The mother herself indicated the risks of living in a shelter during the COVID-19 crisis in an interview with the Ottawa Citizen, however she has confirmed that she has taken matters very seriously, and the children no longer play with other children, their activities are limited and they are monitored when in public areas in the hotel;
• The hotel has implemented measures including: delivering breakfast to the outside of the doors of the suites; ensuring that there is hand sanitizers in the hallway and limiting the number of mechanisms that must be touched;
• The children are not expected to return to school at least for another month;
• Both parents will follow all health related advisories including social distancing, self-isolation limited to people in their own home, essential excursions out of the home only;
• It will limit the back and forth of the children between the parents and reduce the amount of time the children need to spend in a vehicle; and
• It is in the best interests of the children to limit the contact between the parents which is needed in a 2-2-3 split

[43] Accordingly, commencing Sunday April 26 at 5:00 p.m. the mother will have the children for one week and the father will have the children for one week on May 3rd until further order of this Court.

[44] Until further Order of this Court, and on a without prejudice basis, the father will continue to provide all the transportation of the children to facilitate the parenting schedule.

[45] Each parent shall ensure that all members of their households will follow the most current Ottawa Public Health advisories. Each parent shall immediately advise the other parent forthwith, if there is any reason to believe that a member of their respective household may have been exposed to COVID-19 infection and shall notify the other parent forthwith, in writing with the detailed information regarding the potential exposure and steps that have been taken as a result of this exposure.

Child Support

[46] Regarding child support, the parents are in a shared parenting arrangement. Therefore, the Court is guided by s. 9 of the Child Support Guidelines and Contino v. Leonelli-Contino, 2005 SCC 63, [2005] S.C.J. 65, where the Supreme Court of Canada confirmed that all 3 factors set out in s. 9 must be considered.

[47] The mother’s financial statement shows a total annual income of $12,585 from government tax credits and social assistance.

[48] The father’s financial statement sworn October 11, 2019 indicates that he works for the Ottawa Police Services earning $82,320 per annum. Also, it shows a debt of a consumer proposal of amount owing of $11,660 and monthly payment of $265. His financial statement states that he resides with Kasi Brake, who is unemployed and contributes $2500 per month towards household expenses.

[49] Since this matter was brought on an emergency basis, the Court must deal with this issue expeditiously based on the information before the Court which includes two financial statements but no child budgets nor the evidence necessary to complete a full analysis under Contino.

[50] At this point, on a without prejudice basis, until the full motion is heard, the father should pay child support to the mother.

[51] In determining child support, I have considered the following:

• He has his own living expenses for the children that reside with him half the time;
• He has undertaken the driving of the children since the mother does not own a vehicle;
• The sworn evidence before the Court is the father’s October 2019 financial statement which indicates that he earns an annual income of $82,320;
• The mother is on social assistance and the mother has no employment income; and
• The mother was to provide financial disclosure pursuant to Justice Mackinnon’s Order including efforts she has made to find employment. That evidence is not before the Court.

[52] At this point, based on the limited record before me and on a without prejudice basis, commencing May 1, 2020, the father will pay child support of $1000 per month to the mother pending the return of the full motion.

Other issues

[53] At this time, I do not see the necessity of police enforcement clauses. The parties will now be bound by a Court Order which requires full compliance. If there are issues in the future, then this request can be renewed.

[54] I am not prepared to limit the number of communications between the parties. Given that the parties will now have a week on/week off schedule, there should be less communications between them regarding the transfer of the children. Suffice to say, if communication from a party is inappropriate, the Court at the full motion can deal with this issue.

[55] The issue of costs will be reserved to the Judge hearing the full motion.

Date: April 22, 2020 A. Doyle Released: April 22, 2020