Court File and Parties

COURT FILE NO.: 22/19 DATE: 2020-04-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUKPREET MULTANI, Applicant AND: RAVDEEP RANA, Respondent

BEFORE: Kurz J.

COUNSEL: Philip Viater for the Applicant Shelly Kalra, for the Respondent

HEARD: by audioconference

Endorsement

Introduction

[1] The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. At this time of pandemic, only the most urgent matters, consent matters, and where the parties agree, case conferences and motions in writing, can be heard. These requirements are set out in:

• this court’s March 15, 2020 Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, issued to explain and direct the suspension, https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (“the Notice”),and
• the April 2, 2020 addendum to that Notice as it applies to the Central West Region Central West Region, https://www.ontariocourts.ca/scj/notice-to-the-profession-cw/ (“the Addendum).

[2] On April 7, 2020 I reviewed the letter to the court of the Respondent’s lawyer, Ms. Kalra. I determined on a preliminary and without prejudice basis that the circumstances alleged inthat letter and the request of the Respondent father, Ravdeep Rana (“the father”) to reinstate the access granted by the order of Henderson J. of October 3, 2017 meet this court’s definition of urgency as set out in the Notice.

[3] On April 15, 2020, I issued a further endorsement on my own initiative. By that time, four affidavits had been filed (three from the parties, one from the child’s therapist, Suheet Shergill).I found that much of the father’s reply affidavit is not proper reply. As a result,I granted the Applicant mother, Sukpreet Multani (“the mother”), leave to file abrief sur-reply affidavit. I also ordered that the mother may argue in favour of an interim variation of the Henderson J. order, in favour of an order that all of the father’s in-person access be suspended in favour of Skype contact during the COVID-19 crisis.The mother had originally sought to file a cross motion for that and other relief, but I rejected her request. That rejection was based on the only material before me, Ms. Kalra’s letter, filed pursuant to the Addendum. The Addendum does not allow a response to a party’s letter seeking leave to bring an urgent motion during the court’s period of suspension.

[4] I changed my mind after I reviewed the mother’s responding materials. Heraffidavit and its attachedtrial endorsement of Henderson J., convinced me, in the same without prejudice manner that Ms. Kalra’s letter convinced me, that there was possible urgency to the Applicant’s request to change the Respondent’s access. In both cases, I made no preliminary determination of the merits.

[5] Further, from the parties’ materials and correspondence with the court, it was clear that the father was aware of the mother’s request for the change to his access. He spoke to it in his materials. Thus, even in the absence of a notice of motion, I found no prejudice to the father in allowing the mother to argue for an interim variation of the Henderson J. order. The issue had already been joined in the parties’ affidavits.Further, that result followed the principle set out in r. 2(5)(f), of dealing with cases justly by dealing with as many aspects of the case as possible on the same occasion.

[6] Although I did not cite the authority at the time of the decision, I also rely on the decision of the majority of the Ontario Court of Appeal in Richardson v. Richardson, 2019 ONCA 983. There, the majorityfound that in making child custody decisions, the court is not limited by the positions that parties take before it or even by the terms of their settlement. That is because the court is required to determine any parenting issue before it based only on the child’s best interests. Of course, that remedy should be rarely invoked and fully explained in the court’s reasons.

[7] In Laliberte v. Jones (2016), 2016 SKQB 192, Danyliuk J. of the Saskatchewan Court of Queens Bench took a very similar approach to that adopted by our Court of Appeal. He wrote:

17 First, I note this is a family law matter. It is not a criminal trial, nor a commercial dispute. This is an action involving a child's interests. The court is not obligated to sit idly by and act only as a referee. In family law matters this court frequently exercises its inherent or parens patriae jurisdiction to attempt to do real justice between the parties and for the children, and to ensure that the interests of children (who cannot speak for themselves in these proceedings) are protected. Family law requires a somewhat different perspective than what is required for other legal disputes, not only for adjudicators but for counsel and the litigants as well.

18 This is reflected in legislation, in the rules of court, in judgments, and in the very practice and procedure by which such matters are conducted.

(see also the thorough discussion of the issue in Franks and Zalev, This Week in Family Law, Westlaw Next.Canada, April 13, 2020)

In Brief, I Grant the Father’s Motion

[8] For the reasons to follow, I grant the father’s motion and order the reinstatement of his access upon terms. Conversely, I do not grant the mother’s request to suspend the access order of Henderson J. In short, court orders must be obeyed even in a time of pandemic. The mother fails to demonstrate on the evidence that this is an appropriate case to vary the access order on an interim basis.

Motion to Change

[9] Due to the pandemic and the closing of the physical courts, I do not have the original court file for this proceeding before me. If it is not in storage it is at the courthouse in Niagara Falls, where the trial before Henderson J. took place. The mother and child have since moved to Halton. Because I did not have that court file, I assumed that there was an ongoing underlying motion to change Henderson J.’s order when I directed that this motion proceed. Only during oral argument did I learn that each party had spoken of bringing such a motion but neither had done so. During that argument, the father undertook to bring the motion to change, seeking increased access, he had earlier discussed. On that undertaking and based on my earlier without prejudice findings of potential urgency, I was willing to hear and determine this motion.

Background

[10] In the absence of the court file, I rely in large measure on the trial reasons of Henderson J. of October 3, 2017 (reported at 2017 ONSC 5874). Based primarily on those reasons, I offer the following historical background to this motion. I offer some detail because it is relevant to understanding the level of mistrust between the parties.

[11] The parties originally hail from India. They married on July 16, 2010 and separated just over 26 months later, on October 7, 2012. At the time, they were residing together in New Jersey. Following the separation, the mother moved to her parents' home in St. Catharines, Ontario. Shortly thereafter, on October 16, 2012, the mother gave birth to the parties' son, R. [1]

[12] The mother now resides in Milton with R and her second husband. The fathercontinues to primarily reside in New Jersey, where he works as a sales engineer. However he has been in living in a rented condo in Etobicoke since March 8, 2020. He states that he intends to remain there until this crisis abates.The mother is a Canadian citizen while the father is a citizen of the U.S.

[13] The parties’ post-separation relationshave been difficult and highly conflictual. The record of the father’s conduct and integrity during their litigation can be fairly described as checkered. Hedid not respond to the mother’s application for custody and support. That failure led to the uncontested hearing of July 11, 2014 before Justice Linda Walters. At that time, Walters J. ordered that the mother have sole custody of R, with reasonable access to the father. Walters J. also set out the father’s support obligations to the mother.

[14] The father subsequently claimed that he had received no notice of the proceedings before Walters J. However, he later acknowledged service of the mother’s pleadings. In fact, the parties exchanged emails about the July 11, 2014 court date. Further, the father had written to the Superior Court, denying that this court had jurisdiction to determine the issues between himself and the mother. Nonetheless, he testified at trial that he never wrote the letter, an assertion that Henderson J. categorically rejected.

[15] Just prior to the uncontested hearing before Walters J., the father brought a Hague Abduction Convention [2] application in New Jersey. He claimed that the mother had kidnapped Rfrom the U.S. and was denyinghim access to the child. Henderson J. found that those allegations were “blatantly untrue and prejudicial statements”. Rather than kidnapping the child, the mother was at the time strongly but not successfully encouraging the father to exercise access and have contact with R.

[16] In December 2014, the father wrote a letter to the New Jersey Superior Court, falsely stating that Walters J.’s order had been obtained by fraud and that he had had no notice of the court date. In or about March 2015, the mother successfully moved for summary judgment in that HagueConvention application, leading to its dismissal.

[17] Despite that troubling litigation history, the father accepted the mother’s offer to exercise access once per month, on the second weekend of the month, from Friday to Sunday. Their agreement also included the option for the father to see R on the fourth weekend of the month, provided that he provides notice to the mother.

[18] In April 2015, the father brought a motion to change the Walters J. uncontested order. He sought joint custody of R, an increase in access, an end to supervision of that access, restrictions on the mother’s mobility with R, an order changing R's last name from "Raath-Rana" (as both parties had registered it) to "Rana", permission to register R's birth in the U.S., and termination of spousal support. The mother opposed that relief sought, arguing that there had been no material change in circumstances since the time of the Walters J. order.

[19] By September 2015 the mother was allowing unsupervised access.

[20] On August 18, 2016, an interim variation of the Walters J. access order was granted, allowing the father access to R every third weekend as well as Skype access twice per week.T he parties agreed that the father would have two weeks with R in the summer of 2017. That order represented the status quo at the time of the 2017 trial. As set out below, the father did not exercise all of the access granted to him.

Henderson J.’s Findings and Order

[21] Henderson J. conducted a seven day trial of the father’s motion to change. He made many positive findings about the mother and adverse findings against the father. Nonetheless, he granted the father the access he had originally requested. Among Henderson J.’s findings were the following:

1. The mother has done “… an admirable job as the primary custodial parent for [R]. [R] is progressing well to date; he regularly has access visits with [the father] despite the distance between them; he regularly sees members of both sides of his extended family; and he has developed a good bond with both his parents. I also find that [the mother]has taken positive steps to ensure that [the father] has access to all relevant school and medical records about his son.”
2. It was Henderson J.’s “impression” that the mother had encouraged access but that the access was inconsistent because of the father’s “tendency to reschedule or postpone”.
3. The father failed to exercise all of the access granted to him. On the other hand, the mother had attempted to arrange a set access schedule, often agreeing to the father’s proposals. However the father cancelled his visit on several occasions because of work commitments. He then complained that the mother was denying his access. Further, he only exercised one of the two weeks of summer access he had sought. Henderson J. accepted a description of this conduct as “gamesmanship”.
4. Henderson J. stated that the father’s position in both his pleadings and trial testimony was that he would be content with access every third weekend. However in his closing submissions, he insisted on alternate weekend access. Henderson J. declared that “… t his change in position during the course of the trial is symptomatic of the problems that have arisen between the parties with respect to scheduling access.” Henderson J. further pointed out that the parties had tried that alternate weekend arrangement in the past. But it had failed because the father had difficulty travelling to the mother’s St. Catharines home every second weekend. Even with the access every third weekend, the father had experienced trouble finding the time to spend the entire weekend with R.
5. Joint custody is not necessary to ensure the father’s access. The father’s suggestion that the mother tries to control his access is unfounded.
6. There was a great deal of distrust between the parties, to the extent that they are unable to make decisions together.
7. The mother understands that it is in R's best interests for the father to have regular access, and she will encourage that access.
8. The father’s request to change R's name so as to eliminate any reference to R's mother's heritage is not in the child’s best interests.

[22] Henderson J. made some very strong credibility findings against the father and in favour of the mother. He found that the father had “little credibility.”He went further, stating that the father:

… has shown that he is prepared to make untrue statements to the court and that he is prepared to misrepresent the facts. Anything [the father] has said that is not corroborated must be treated with caution.

[23] Henderson J. listed a number of reasons for this finding, some of which are cited above. On the other hand, he found that the mother’s credibility was “much better” than that of the father. He referred to one incident involving a Children’s Aid Society worker‘s directions to the mother after she alleged that the father abused R. That allegation turned out to be unfounded. But the mother may have misinterpreted a CAS worker’s direction regarding access during the Society’s investigation, leading to a misstatement and a temporary access denial. However Henderson J. did not fault the mother for this. He preferred her evidence every time that it contradicted that of the father.

[24] For the purposes of this motion, the relevant terms of Henderson J.’s order are the following:

a) The mother shall continue to have sole custody of R, in accord with the order of Walters J. b) The father shall continue to have access to R every three weekends, from Friday at 4:00 p.m. to Sunday at 4:00 p.m. The father will pick up and drop off R at the mother’s residence, and R will remain within the Province of Ontario during the access visits. c) Skype access will remain twice per week for 15 minutes each call. d) The father shall have holiday access with R for one week over the winter break, alternate March Break weeks, and two weeks (non-consecutive) in the summers. A holiday access "week" (7 days) may be combined with the father’s regular weekend access to allow for a holiday period of 9 days. e) The mother’s mobility with R will not be restricted. f) The father may not exercise his access in the U.S. without the mother’s written consent or a court order. g) The father’s request to change R's last name is dismissed. h) The father may register R’s birth in the U.S. However, his requests to apply for R's U.S. passport and Social Security number are dismissed.

[25] There is one takeawayfrom Henderson J.’s decision that is both obvious and easy to miss but which is relevant to this motion. Despite his misgivings about the father’s tactics and honesty with the court, Henderson J. found that the father’s access to R was in the child’s best interests. He granted the father as much access as he felt that the father could reasonably accommodate.

The Parties’ Current Dispute

[26] The mother claims that there have been ongoing access disputes since the time of Henderson J.’s order. She broadly claims that the father has been using his access to “harass and stalk” her and to attempt to derogate her in R’s eyes. With regard to the latter allegation, she relies in large measure on the evidence found in the clinical notes of Suheet Shergill, the psychotherapist whom she retained to counsel R. I will have more to say about the problems with that therapist’s evidence below.

[27] Despite the mother’sapprehensionsabout the father’s access, she took no steps to change it until the father insisted on exercising it during the COVID-19 crisis. Even then, she waited until the father moved to enforce the Henderson J. order before she took any steps to change it. She explains that she wanted to avoid exacerbating the conflict with him.

[28] On October 20, 2019, two years after Henderson J.’s order was issued, the father wrote to the mother to say that he would like to increase the frequency of his access to alternate weekends. He felt that R was older and that his access had gone well. The mother was unwilling to agree. Nine days later, on October 29, 2019, the mother wrote to the father, alleging, for the first time, that he was “brainwashing”R. She stated that every time the child returns from a visit, she had to help him in “ detoxifying his mind”. On November 28, 2019, the mother’s lawyer wrote to the father, threatening to impose supervised accessin the face of his alleged parenting misconduct. On December 7, 2019 the mother brought R to his first session with Ms. Shergill.

[29] Until January 2020, the father had been exercising his access in hotel rooms or at Airbnb’s. On January 29, 2020, the mother emailed to the father to say that, as a result of COVID-19 concerns, she wished his access to be reduced to day access in safe places. The disease had yet to be reported present in Canada. The father wrote back to say that he had rented his own condo in Etobicoke.He insisted on his access and received it.He continued to receive his access every third weekend until March 2020. In order to do so, he drove to Ontario to stay at his condo.

[30] The father arrived in Ontario on March 8, 2020, in anticipation of commencing March break and weekend access with R. He has yet to return to his American home

[31] On March 11, 2020, the mother emailed the father to determine his access dates for March break. In accord with Henderson J.’s order, the father was entitled to both a one week access period over spring break and to take it consecutive to one of his access weekends. That would give him nine consecutive days of access. The father informed the mother that he intended to do just that, as he had two years earlier.

[32] The following day, the mother responded that she “…strongly suggested and recommended” in light of COVID-19, that the child not spend nine days with his father in a “sporadic rental arrangement”. She requested that the father take his March break access the following year.The father replied that the child would be just as safe in his care as hers. He added that he was taking the appropriate steps to protect the child from the pandemic. He further requested that R’s OHIP card accompany him on access visits. That is something the mother had consistently refused to allow, even in light of her COVID-19 concerns.

[33] At the time of this exchange, the Canadian government was not requiring or even recommending the 14 days of self-isolation for travellers from the U.S, which it imposed on March 25, 2020 (https://www.canada.ca/en/public-health/news/2020/03/new-order-makes-self-isolation-mandatory-for-individuals-entering-canada.html). The mother’s affidavit shows that the Canadian government first recommended self-isolation nine days earlier, on March 16, 2020.That recommendation came five days before the email exchange cited above.

[34] On March 13, 2020, the day that the father intended to begin his access, the mother wrote to the father. She stated that she would not allow him to exercise his court ordered access “…until the threat settles down”, in other words, indefinitely. She stated that as custodial parent, she was making a health decision for the child in the face of an unprecedented health crisis. She offered him an extra Skype session and access on the following March break. As the father pointed out in his reply affidavit, although the mother relies on his alleged breach of self-isolation rules, she did not rely on that issue when she denied his attempt to exercise access on March 13, 2020.

[35] Having chosen to unilaterally cancel his court ordered access, the mother accused the father of bad behaviour. She wrote “[i]nstead of cooperating responsibly, you started a long impolite war of words”. Having reviewed the email exchange, I do not see any evidence that the father communicated in an “impolite” manner with the mother. At worst, his tone of concern matched hers. However, the mother’s manner of writing to the father implied that she alone knew and could decide what was right and safe for R, whatever the court order.

[36] The mother was long aware of the father’s entitlement to seven days of spring break access in 2020. He had also been exercising regular access every three weeks. Yet, she took no steps to move to vary Henderson J.’s order. The court’s Notice, suspending its operationsas a result of the COVID-19 crisis, was not released until March 15, 2020. The mother had time to bring such a motion if she felt it to be urgent enough to cancel his access.

[37] The father called the police on March 13, 2020, in anticipation of being denied access. An officer attended at the mother’s home, but the mother refused to allow the court ordered access. As Henderson J.’s order has no police enforcement clause, there was little that the officer could do. The father attended at a Starbuck’s plaza near the mother’s home that afternoon/evening. He sat in his car in accord, he says, with his discussions with the police, to await the child.I will have more to say about the competing arguments about those events later in this decision.

[38] On March 16, 2020, the mother wrote to the father to berate him for calling the police. She described his involving the police as “highly offensive” and taken “with the intent of threatening and intimidating me”.In light of that conduct, she withdrew her offer of make up access the following March break, offering instead half of that time “…with all fairness to my leisure time and R as well”. She also offered an extra Skype session “only for the weeks in which your access falls.”

[39] On March 21, 2020 the mother informed the father that there would be no weekend access. She indicated that she would be willing to allow extra Skype access.The father responded in part by asking whether there would be any makeup time if R is off school indefinitely and he had the available time. She replied that it is “inappropriate and irrational” to “direct” her to offer make-up access. Of course, she had already made one make-up access offer, then unilaterally withdrawn it replacing it with an offer of half the access in the past week.She appears to have later rescinded that withdrawal and again offered the full week of makeup access next year.

[40] The parties continued in this vein. The father complained about the limits to his access,in breach of the court order. The mother claimed the moral high ground of acting only to protect their son’s health. Meanwhile, she allowed increased Skype access, but not the one hour per day that the father sought. He complained that she arbitrarily cut the calls short while she felt that he kept the child on the line for too long.

[41] Once the lawyers became involved, they wrote back and forth to each other, to much the same effect. They were unable to agree on anything.Many of their letters were placed before the court without objection. But when I raised the issue during the argument of the motion, Mr. Viater objected and asserted the settlement privilege. Accordingly, I do not rely on any settlement offers in either counsel’s correspondence for the purpose of determining this motion, although they may be relevant to costs.

The Father’s Arguments in Favour of Enforcing the Henderson J. Order

[42] The father argues that he is simply attempting to carry out his court ordered access. He argues that I should restore the access to which he remains entitled, grant him makeup time, and impose a police enforcement term because:

1. Court orders must be obeyed. Even in an age of COVID-19, they are presumptively correct.
2. To fail to restore access would impair the child’s best interests because it would keep him from his father for an indefinite period of time.
3. He takes COVID-19 seriously. That is why he rented his Etobicoke condo in January 2020.
4. He has remained in his Etobicoke condo, where he works from home, since March 8, 2020. He intends to keep renting it indefinitely, until the present crisis abates.
5. His condo building has enacted strict procedures for the pandemic. He attaches to his affidavit copies of the notices that the building management has posted, setting out those procedures.
6. He has “sanitized” his unit and cleans it daily.
7. He did self-isolate for 14 days when the mother insisted that he do so. Nonetheless, even after the 14 days, she has refused him access.
8. He called the police for an appropriate reason: he did not wish to attend at the mother’s home to create a scene in front of the child. He stayed at a plaza close to her home at the direction of the police, when they attended at her home. That was not, as the mother alleged, a form of “stalking” or “harassing” her.
9. In regard to the claim that he is secretive, he produced a copy of his lease, which he attached to his reply affidavit. He points out that the wife refuses to even tell him the name of her husband or to allow him to have R’s OHIP card during access visits.
10. The father challenges the evidence of the therapist, Ms. Shergill on many of the grounds set out below in this decision.

Mother’s Arguments in Favour of Suspending the Father’s In-Person Access

[43] The mother argues that the father’s in-person access should be suspended and replaced with three Skype sessions per week, with two extra calls on the father’s access weekends. She says that I should grant this relief because:

a) I should rely on Henderson J.’s findings and not believe anything that the father says because he is a liar. b) She “believe[s]” that the father “… would intentionally cause harm to myself and my family.” c) He is secretive. He has not produced employment information that she requested. He had not produced a copy of the lease for his Etobicoke condo until she raised the issue in her first affidavit. d) He does not take COVID-19 seriously. She says this because: a. If he did take the virus seriously, he would not be seeking makeup access or to take R to “ a random apartment that he is renting in Etobicoke”. b. He did not intend to self-isolate at the time of his access. His pointing out that the requirement of self-isolation was only issued after he set out the dates for his access is “ some sort of technicality ”. c. By not accepting her position or offers, the father shows that he does not care for R’s health and safety. e) He called the police, which “… is particularly important in my case.” f) She feels that the father’s access should be supervised in any event because he is trying to “brainwash” the child against her.

[44] In support of her “brainwashing” claim, the mother relies in large measure on the evidence of the psychotherapist that she engaged on behalf of R in December 2019, Sumeet Shergill. Ms. Shergill filed her own affidavit, offering little in the way of opinion, explanation or detail. Rather, she attached the notes of her sessions with Rto her affidavit, along with her CV and Form 20.1 expert acknowledgment. In the body of her affidavit, Ms. Shergill offered the one sentence opinion that the child’s comments to her accurately reflect what he perceives. That was the only opinion evidence that she offered.

Law

Urgency

[45] Under the Notice, urgency in non-child protection family law matters is not defined, but it is described as including:

1. 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);
2. 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;
3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.

[46] The Notice makes clear that only the most urgent matters will qualify as urgent at this time. To do otherwise would overwhelm the presently limited administrative capabilities of this court.

[47] In Thomas v. Wohleber, 2020 ONSC 1965, I considered various factors, including the dictionary definition, the Notice, and case law. I found at para. 38 that the following factors must be present in order to meet the Notice’s requirement of urgency:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[48] Ribeiro v. Wright, 2020 ONSC 1829 (Ont. S.C.J.) is the leading Ontario case on urgency in custody and access issues during this pandemic. In that case, Pazaratz J. refused to allow a motion to proceed that had been brought by a primary caregiver, seeking to suspend her former spouse’s access. Pazaratz J. found that moving party’s vague concerns that the other parent would not exercise social distancing did not meet the high test of urgency. He found at para. 20 that parents “…should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.” In fact, Pazaratz J. stated:

A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

[49] Pazaratz J. found that the moving party claiming urgency must provide specific evidence or examples of parental behaviour that creates a level of urgency. Much the same is required of responding parties, to assure the court that the concern is unwarranted. In these difficult times, both parents or spouses must “… act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.” (para. 22).

Jurisdiction to Make an Interim Order Varying a Final Custody Order

[50] The Divorce Act grants the jurisdiction to make interim (s. 16(2)) and final custody and access orders (s. 16(1)). Under s. 17(1)(b) the court may make a final order varying an earlier final custody and access order. In order to make such a variation order, the court must be satisfied that :

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[51] In Gordon v. Goertz, [1996] 2 SCR 27, the Supreme Court of Canada set out the components of the material change in circumstances test for a variation of a parenting order. McLachlin J., as she then was, wrote the following for the court:

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way… The question is whether the previous order might have been different had the circumstances now existing prevailed earlier... Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”…

13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[references cited in decision deleted]

[52] It bears noting that McLachlin J. also pointed out at para. 11 of Gordon v. Goertz, that the starting point of the court’s consideration regarding a material change of circumstances is the assumption that the original order was correct. The consideration of a material change looks only to events that have occurred since the original order.

[53] That being said, there is no express jurisdiction in the Divorce Act to allow an interim variation of a final custody or access order. Nonetheless, judges have previously made such orders in clear and urgent cases. In Crawford v. Dixon, [2001] O.J. No. 466 (S.C.J.), Granger J. cites with approval James G. McLeod's commentary on Dancsecs v. Dancsecs (1994), 5 R.F.L. (4th) 64 (Ont. Gen. Div.). That commentary states:

On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.

[54] Put more simply, as set out in Stuyt v Stuyt, [2006] OJ No 4890 (S.C.J.):

…generally, the custodial status quo will not be changed on an interim custody motion in the absence of compelling reasons indicating the necessity of a change to meet the children's best interests;

[55] In Ivens v. Ivens, 2020 ONSC 2194, I reviewed a number of authorities with regard to the test for an interim variation of a final custody support order. I found that the test has three components, requiring the moving party to prove:

1. A strong prima facie case;
2. A clear case of hardship; and
3. Urgency;

[56] Each of the three components of that test must relate to the best interests of the child or children at question. The three part test logically applies equally to attempts to vary final orders dealing with access or more generalparenting issues.

The Duty to Obey Parenting Orders

[57] The father relies in large measure on the order of Henderson J. itself and seeks its enforcement. A parenting order is not a suggestion nor is it a recommendation. It is a command and direction which must be obeyed. Compliance is not optional (Dumont v. Lucescu, 2015 ONSC 494 at para. 43, Ivens. v. Ivens, at para. 85).

[58] Mossip J. put the issue very well in Reeves v. Reeves, 2001 CarswellOnt (Ont. S.C.J.):

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist or doctors. It is the responsibility of good parents to ensure the children go to school, go to doctors, and go to the dentist. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

[59] Two recent COVID-19 cases reinforce the principle that court orders regarding custody and access must be obeyed. In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. stated that:

There is a presumption that all orders should be respected and complied with. 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.

[60] In Cooper v Teneyck 2020 ONSC 2378, Madsen J. wrote:

[14] What is “urgent” at this time is that this mother and this father work together to adapt and shape their existing parenting order to work in the current circumstances. That order continues to govern. There is no presumption that COVID-19 permits a primary residential parent to terminate the children’s time with the other parent.

[Emphasis in original]

[61] Furthermore, the COVID-19 pandemic does not grant parents the right to exercise self help in the face of their subjective view of the parenting abilities or arrangements of their former spouse. McGee J. set that principle out in the recent case of Ahmadi v. Kalashi, 2020 ONSC 2047, at para. 8, as follows:

Ms. Kalashi is not permitted to simply engage in self help, or to interpret public health directives as a license to terminate parenting time. If she fears that the current routine may compromise their son’s well being, or her mother’s health; then she must provide specifics [to the court] and an alternate form of transportation.

The Maximum Contact Principle

[62] In her oral argument, the father’s counsel referred to the application of the maximum contact principle to the facts of this case. As the Ontario Court of Appeal recently confirmed in Rigillo v Rigillo, 2019 ONCA 548, courts determining custody and access issues must advert to the maximum contact principle set out in s. 16(10) of the Divorce Act. That provision reads as follows:

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[Emphasis added by Ontario Court of Appeal in Rigillo]

[63] At para. 10 of Rigillo, the appellate court added that any judge who departs from the maximum contact principle must provide reasons for doing so. The failure to do so is a reversible error in law.

[64] In Ferreira v. Ferreira, 2015 ONSC 3602, McGee J. invoked the maximum contact principle when she found that the children had unjustifiably rejected their father. In doing so, McGee J. offered her full-throated support for the maximum contact principle, writing:

28 Not only is maximum contact a legal prerogative, it is consistent with children's best outcomes following their parents' separation. Maximum involvement of parents in children's lives after separation is supported by a large body of research on outcomes of divorce for children.

30 The combined effect of the legal obligations and the research underscores a presumption that regular access by a non-custodial parent is in the best interests of children.

31 The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. The party who seeks to reduce normal access is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.

32 A child's relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children's physical or mental well-being.

[references cited in decision deleted]

[65] That being said, it must be noted that despite the court’s finding on the specific facts of each of Rigillo and Ferreira, the wording of DA s. 16(10) explicitly subordinates the maximum contact principle to the child’s best interests. The principle is to be honoured only to the extent that it is “consistent” with the child’s best interests. That point was emphasised by L'Heureux-Dubé J., writing in dissent on the result but not in her analysis of best interests, in the seminal Supreme Court of Canada decision, Young v. Young, [1993] S.C.J. No. 112, at para 40 and 53.

[66] The maximum contact principle has some application in these extraordinary days as well. Fear of coronavirus, while understandable in the context of our natural desire to protect our children, cannot be the sole determinant of parenting arrangements. As Pazaratz J. alluded to in Ribeiro v. Wright at para. 10, we do not know how long the pandemic will last. It may last a very long time. A vaccine is far off. So too is a sense of absolute personal safety from the coronavirus. Until a vaccine is developed, parents and courts cannot use the present crisis as an excuse to put our children’s relationships with either of their parents on indefinite hold. Our children’s best interests demand that we avoid any presumption that impairs places those relationships or places them into limbo.Children need both of their parents during this crisis and they need them now.

Issues

[67] This case raises the four following issues:

1. Is the mother entitled to disobey the access order of Henderson J.?
2. Does the mother raise a strong prima facie case to vary the access Order of Henderson J.?
3. Has the mother proven a clear case of hardship?
4. Has the mother proven that this is a case of urgency?

Analysis

Issue No 1: Is the mother entitled to disobey the access order of Henderson J?

[68] In Canada (Human Rights Commission) v Taylor, [1990] 3 SCR 892, Dickson C.J., writing for the majority of the Supreme Court of Canada made it clear that whatever one thinks of the validity or utility of an order, the person must obey that order. They must do so unless or until it is changed. In saying this, Dickson C.J. adopted the reasoning of Mahoney J. of the Federal Court of Appeal in the case below, , [1987] 3 F.C. 593 at para 13, that:

The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands that it be negated by due process of the law, not by disobedience.

(see also Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585 (H.C.), at p. 613, the authority that Mahoney J.A. relied upon in coming to the conclusion cited above.)

[69] While the Supreme Court was divided on the constitutional, free speech issue before it in Taylor, it was unanimous in its view of the duty to obey court orders. As McLachlin J., as she then was, wrote for the minority:

If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens' safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them.

[70] Here, the mother was fully aware of the access terms of the Henderson J. order. She also claims to have been aware of the issue of COVID-19 from January 2020 onward. She was entitled to bring a motion to change the order of Henderson J. and to move to have it varied on an interim basis. She failed to do so before she unilaterally cancelled the father’s access.

[71] Further, as the caselaw set out above demonstrates, the principle of law upholding the duty to obey court orders is not abrogated by the COVID-19 crisis. Parents, even those armed with a custody order, may not take the law into their own hands. They may not use the crisis to unilaterally assert parenting rights to which they are not entitled and abrogate those of the other parent. Conduct like that creates its own problem, one the courts are increasingly seeing during this pandemic crisis.

[72] In Ivens v. Ivens, cited above, I wrote:

[1] During this COVID-19 pandemic, the courts are beginning to see a situation that approaches a crisis of its own: parents using the urgency of the moment to seize the sole right to parent their children, contrary to court orders. The suspension and limited administrative capabilities of this court have necessarily led it to be very strict in determining the level of urgency necessary to allow an audience with a judge. But that rigour does not mean that we should ignore blatant breaches of custody and access orders or the unilateral usurpation of parental roles under the guise of COVID-19 protection. Such a state of affairs would, in itself, create a situation of harm for children.

[73] Until it is changed, the order of Henderson J. must be obeyed and is presumed to be correct. While the mother wants the court to rely on Henderson J.’s adverse findings against the father, she feels entitled to ignore the actual terms of his order. She is not permitted to do so. The mother acted improperly in refusing to allow the father to exercise his court ordered access.

[74] However this is not a contempt motion. The father is simply seeking the enforcement of the order for the future. The fact that the mother is presently inbreach of the Henderson J. order does not prevent the court from considering whether its continuation is in the child’s best interests (see: D.D. v. H.D., 2015 ONCA 409 at para. 87). The issue then is whether the Henderson J. order should be varied on an interim basis.

Issue No 2: Does the Mother Raise a Strong Prima Facie Case for the Interim Variation of the Henderson J. Order?

[75] The mother offers a rhetorical litany of what she sees as post-trial bad conduct by the father. She assumes that all of his conduct is motivated by bad faith and is not shy about repeatedly proclaiming that opinion in her materials. The father certainly earned the mother’s low opinion from the behaviour described by Henderson J.

[76] But based on the evidence before me, I do not find that the mother raises a strong prima facie case that she will succeed in varying the order of Henderson J., even in the face of the COVID-19 crisis. The father has exercised his access as ordered. He has not, on the evidence before me, harmed the child. He has not stalked or harassed her. And he has not commenced bootless litigation against the mother. While the mother accuses the father of trying to turn R against her, the evidence at this stage is very problematic, as I set out below.

[77] I review below the mother’s claims against the father and the evidence that she relies on in support of those claims in light of the applicable legal principles.

Henderson J.’s Credibility Findings are Neither Dispositive nor Binding

[78] The starting point of the mother’s argument isHenderson J.’s trial findings against the father; in particular his very pointed credibility findings. The mother asserts that I must simply adopt Henderson J.’s findings of both fact and credibility. Her counsel states that in these difficult times, when the parties cannot appear, live, before me, I should rely on the judge who heard all of their evidence at trial. He adds that such reliance, even on matters of credibility, is simply a matter of common sense.

[79] The mother’s counsel frankly admits that he has been unable to find many authorities on the issue of the use I should make of Henderson J.’s credibility finds. That is one reason that he asked me to adopt his “common sense” approach. He does rely on one authority, the decision of Justice Paddy Hardman of the Ontario Court of Justice in Children's Aid Society of Owen Sound and the County of Grey v. C. P.. In that case, Hardman J. heard a motion following a trial while her decision was reserved.

[80] Hardman J. stated that she was not in a position to make findings of credibility on the motion based on the affidavits filed. But she was prepared to make those findings based on the evidence that she heard at trial. She wrote:

[13] The court is not in a position to make findings of credibility on the basis of affidavits. However, the court has heard direct evidence by the mother during the course of the trial and it seems quite clear that she is prepared to lie about issues until the society can prove otherwise.

[81] I cannot accept Mr. Viater’s argument that the situation here is at all analogous to that before Hardman J. She was making her own credibility findings from the very trial in which the motion was brought before her. Here, I am asked to rely on the credibility findings of another judge in a trial that concluded some two and a half years ago.

[82] On the other hand, the father does himself little credit when he attempts in his affidavits to relitigate many of Henderson J.’s trial findings of fact and credibility against him. To her credit, his lawyer did not attempt that line of argument in her submissions.

[83] While I take note of Henderson J.’s findings against the father, they are not necessarily dispositive against him in this motion. Certainly, his findings of fact are subject to issue estoppel and thus binding as the starting point in my analysis. They set out the baseline circumstances from which any request to change the October 3, 3017 order must start (Gordon v. Goertz,at para. 11-13).

[84] But Henderson J.’s findings of credibility are not binding on me. While I can take note of those findings, I must make my own credibility findings in this motion. As Silverman J. of the British Columbia Supreme Court stated in the context of a matrimonial variation proceeding, when faced with a previous finding that the husband has lied at the original hearing:

13. I do agree with the husband to this extent. Because he may have lied (or made inexplicable errors) with respect to certain relevant matters in the past, I am not entitled to automatically conclude that he therefore must be lying, or mistaken, with respect to the matters that are before me for determination. [Emphasis added]

(see also Makawana v. Bishnu, 2017 ONSC 4916, rev’d on other grounds, 2019 ONCA 543, where Bielby J. of this court stated in similar circumstances, at para. 35: “ I of course have to draw my own conclusions as to credibility …”)

My Own Findings of Credibility

[85] Neither party is a perfect deponent in this motion. But I cannot accept the argument that the father is clearly lying in his evidence. Nor,as I set out above, must I simply prefer the evidence of the mother to that of the father because of Henderson J.’s findings. In fact I can point to areas where the mother’s evidence is inaccurate and exaggerated. For example, she misstates the reason that Henderson J. granted the father access every three rather than two weekends. She swore that this decision was based on the risk that the father could of possibly harm the child. That assertion is simply untrue. Henderson J. never made any findings that the father poses a risk to the child. In fact, the word, risk, is not even used in Henderson J.’s reasons. Rather Henderson J. granted the father the access he originally requested, which was the amount that he felt that the father could reasonably exercise.

[86] Further, as I detail below many of the mother’s more rhetorical claims against the father are at best exaggerated. At worst, they are either untrue or at least not supported by the evidence. I will refer below to the events of March 13, 2020, when the mother refused to release R to the father or the police. Her allegations against him of “stalking”, “threatening” and even violating COVID-19 protocols are overwrought and simply not supported by the evidence.

[87] For his part, the father’s evidence has some difficulties as well. For example, he swore in his first affidavit that he has resided in his Etobicoke condo unit since January 2020. That is not true. In fact, until March 8, 2020, he only lived in his Etobicoke condominium every three weeks, when he was in Ontario to visit with R. But he also stated a number of times in same affidavit that he resides in New Jersey. He also spoke in that affidavit of his self-isolation measures, which are only necessary because he came to Canada from the U.S. in March 2020. So the statement is more likely to be a drafting error than a lie.

[88] The father also says that he began the motion to change that led to the trial before Henderson J. in order to obtain, among other relief, unsupervised access. While technically that statement is true, it is misleading. He brought his motion to change in April 2015 at a time that his access was supervised. But by September 2015, more than two years before the trial before Henderson J. the mother had agreed that his access be unsupervised. She did not question the issue of supervision in the 2016 interim motion or the 2017 trial. Further, Henderson J. found that the mother was not denying his access; she was actually encouraging it.

Allegation that the Father Would harm the Mother

[89] Both in her materials and in her counsel’s submissions, the mother insisted that she fearedthat the father would harm her and her family. She swore in her first affidavit:

15. Unfortunately, I do believe that Mr. Rana would intentionally cause harm to myself and my family. Mr. Rana continues to obsess over our separation and the fact that he lost control over me. Are view of the psychotherapist’s records even demonstrate that Mr. Rana continues to speak about our separation to R as if this were still fresh in his mind. We have been separated for about 8 years now! We separated prior to the birth of [ R].

[90] The mother goes on to say that she believes that the father “uses [ R] as a means to harass and stalk me.” In all, she makes six references in her first affidavit to the father purportedly stalking her.

[91] These are very serious allegations. A person who feels concern for their personal safety should never be afraid to speak up to protect themselves and their loved ones. Society has an obligation to protect vulnerable people frompredation as best it can. A court presented with evidence of risk that an ex-spouse intends to harm their former partner must take the allegation seriously and act accordingly. Too many people, particularly women, have died when their cries for help have been ignored.

[92] But this is not one of those cases. Despite the billowing cloud of smoke that the mother blows in the father’s direction, she points to barely acinder ofthe alleged fire. The mother has presented the court with virtually no evidence that the father is the malefactor she so rhetorically alleges him to be. Starting as she bids me to do, with the decision of Henderson J., there is no reference to the father harming, stalking or threatening her. There is no reference to the father being a risk to anyone. That was a hotly contested trial. If there was evidence of such behaviour, Henderson J, would have noted it.

[93] Moving on to the mother’s own evidence: the only evidence that she relies on in support of any of these serious allegations is the following:

a. The mother has referred to the father’s correspondence with her as threatening and harassing. I have read those emails. With regard to alleged threats, the father has been resolute in demanding his court ordered access. However, the mother can point to nothing that is threatening in his email contact with her (which appears to be their only mode of communication). Nor can I find anything which can be construed as a threat to do anything but call his lawyer and go to court. b. While the mother has referred in her email to the father’s correspondence as “harassment”, that description is wholly inaccurate. The father is consistently polite but insistent. Rather than harassment, the volume of his correspondence reflects the issues at stake between the parties and their attempts to resolve them. c. The only evidence of stalking to which the mother refers is either hearsay or unpersuasive. The hearsay comes in her reliance on her lawyer’s letter that alleges, without proof, that the father tried to rent a house across the street from hers, as if that were evidence of stalking. That letter, in itself is not evidence at all. The unpersuasive evidence is that on March 13, 2020the father attended in his car in a shopping plaza two minutes from her home in the event that the police convince her to release R for access. I will have more to say about that below, but in brief, that is not evidence of stalking. d. Mr. Viater argued that the father has so much animosity to the mother that she fears that he would harm her. He could, say, allow himself to be infected with COVID-19 in order to harm her and her family. That is an argument woven out of whole cloth. e. Stripped to its essence, the mother’s alleged proof of the father’s failure to take COVID-19 seriously is his refusal to follow her directions regarding access. This supposedly poses a serious risk to her and her family. While I review that allegation in greater detail below, I do not find it to be supported by the evidence. f. The mother feels that the father has emotionally harmed R by speaking ill of her and her family to the child. However, the supposedly objective evidence that she relies on to prove that point, the affidavit of Ms. Shergill, is of no assistance in proving that claim. I will have more to say about that affidavit later in these reasons. g. In sum, the mother’s entire argument that the father means to do her,and her family harm is unsupported by the evidence before the court.

Does the Father Take COVID-19 Seriously?

[94] The mother has much to criticize about the father’s response to the COVID-19 crisis. As set out above, she asserts that:

1. he does not take the virus seriously,
2. she does not believe that he has self-isolated,
3. he wants to take the child to a “ a randomapartment thatheis renting”,
4. he will not take proper COVID-19 precautions.
5. by refusing her offer to limit his access and by pushing for make-up access, the father shows that he does not care for R’s health and safety.

[95] The mother’s rhetoric here is stronger than her facts. The father has set out in his materials that he takes the virus seriously and that the building in which he lives does the same. He swears that he has been in Ontario since March 8, 2020 and does not intend to leave until the pandemic is over. He knowsthat if he were to do so, he would have to self-isolate on his return to New Jersey and again when he travels back to Ontario.

[96] The mother takesthe father to task for allowing a friend in his home on March 11, 2020, before he was required to self-isolate. She asserts that he lied about it. I am not convinced that he lied. Standards and obligations about self-isolation were in flux at that time until they were crystalized with the government recommendation on March 16, 2020 and order of March 25, 2020.

[97] As Wright v. Ribeiro directed him to do, the father has “… provided 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.”The father offers that he has disinfected his entire condo unit and cleans it daily. He is practicing social distancing and undertakes to continue to do so, as set out below. The building in which he lives has its own COVID-19 directions, set out in signs distributed in the building, which the father has reproduced in his materials. Those directions speak of enhanced security, the number of people in elevators, the closing of the condo fitness club, new and stricter rules for food and package deliveries,and tightened security for non-residents.

[98] The mother’s response to all of this is that the father simply cannot be trusted because he is a liar. However, at the commencement of the motion, I asked each counsel to tell me what I order should make if the other side prevails. Neither counsel expected that question. Speaking extemporaneously, Mr. Viater told me that if the access were restored, he would want me to impose four conditions on the father. They are that he:

1. surrender his passport and Nexus card to Ms. Kalra, not to be released without court order;
2. not at any time to have guests at his home;
3. not to attend as a guest at any residence; and
4. remain home at all time except for essential services, fresh air or to drive for grocery shopping or errands.

[99] After a brief recess to speak to her client Ms. Kalra told me that the father accepted all four conditions, with one exception based on a logistical problem. Ms. Kalra cannot accept the father’s travel documents because her office is closed following the discovery that a staff member contractedthe Covid-19 virus. However, the father is willing to be bound by an order that he not travel to the U.S. without notice to the mother.In that event, his access will be suspended pending further order. Mr. Viater did not object to that addendum to his term.

[100] As the father had no notice of those conditions and was immediately willing to accept them as terms of my order, I see his agreement as evidence of good faith. For her part, the mother is willing to be bound by the last three conditions as well. I will incorporate them into my order.

[101] As a further show of good faith, I will require the father to produce a photocopy of his passport to the mother when the COVID-19 crisis ends. That will demonstrate that he has not travelled to the U.S. without telling the mother. A failure to abide by that term could have very serious consequences. I would ask the father to do so earlier or more regularly, but I do not think that that request is feasible at a time that virtually all of Ontario is effectively self-isolating.

The Father’s Narratives of the Events of March 13, 2020 do not Prove that he is Stalking her, Lying, or Violating of COVID-19 Protocols

[102] The mother provides a dramatic illustration of the overstated nature of her concerns about the father in her description of the father’s conduct on March 13, 2020. That is the day she refused to hand R over to him or the police for court ordered access. The mother describes the father’s car trip to a Starbucks mall near her home as both a form of “stalking” and a violation of COVID-19 protocols. Neither claim is confirmed by the evidence before me.

[103] The mother’s evidence is that her husband twice saw the father in his car at the Starbuck’s mall. There is no evidence that the father left his car. The father does not directly speak to the issue but does not deny the mother’s allegation. He said that he gave his car and licence plate details to the police, implying that he was sitting in his car and that the police knew where he was. Hardly the behaviour of a stalker.

[104] The father had a credible reason to attend at that mall near the mother’s home. She was denying him access and he was hoping that the police would assist him. If they did, he would be nearby to pick up his son. The mother took him to task for calling the police when R is allegedly scared of them. Had she allowed access through the police, the father was only moments away to take the child. Of course, had she obeyed the court order, there would have been no need to even call for the police. As I add below, I do not wish for the police to ever be involved with R’s access again.

[105] The mother also points out what she says is an inconsistency between the father’s two affidavits about this aborted access visit, which she asserts to be proof of a lie. She points out that in his first affidavit, the father states that after the mother told him not to attend at her home on March 13, 2020, he contacted the Halton Regional Police. He stated that they advised him that they would have “a polite word with her”. They added that he “could go back to Etobicoke” as they would call to advise him later. They later said that they could not enforce the order. In his second, reply affidavit, the father gave a more detailed narrative, which the mother claims to contradict the first one.

[106] In his second recounting of the same events, the father responded to the mother’s allegation that he was stalking her that day. She offers the hearsay account of her unnamed husband twice spotting the father in a car in a Starbuck’s plaza. That to her was proof of the father’s stalking because he lives in Etobicoke. She implied that he had no reason to be near her home even though she was refusing his scheduled access that day.

[107] In the father’s fuller reply narrative, he spoke to the police a number of times that day. During the second call, at about 4:00 p.m., the police asked him to wait near the pickup point for access for an officer to meet him. That pickup point is the mother’s home. He says that he went to the plaza, which is a two minute drive from the mother’s home, called the police to give his location, car and licence plate details and waited.

[108] After a few hours of waiting in vain for word from the police, he went to the police detachment. He was told to return to the plaza or home to Etobicoke. The police would call after they spoke to the mother. They said they could not enforce the order without a police enforcement clause but would attempt to convince the mother to allow access. Given the choice, the father decided to return to the plaza. After about an hour not hearing from the police, he realized that he had missed some calls from a blocked number. Feeling that he missed a call from the police, he headed to the mother’s home, hoping to see an officer and the child in front. Not seeing them there, he headed home. On his way home, he heard from the police that she was refusing access.

[109] While these accounts are far from identical, they are not necessarily contradictory. The father’s first affidavit was brief. His second affidavit, like the mother’s affidavit to which he was responding, was expansive to the point of prolixity. On the face of the two affidavits, and without cross-examination, the two accounts could wellfit together. The lie in which the father is allegedly caught out is not clear to me.

[110] I add that the mother’s descriptions of the father’s behaviour that day, whether she describes it as “highly offensive”, taken “with the intent of threatening and intimidating” her, “stalking” her, or breaching COVID-19 protocols, were all off-base. The father made no threats to the mother other than to insist on compliance with a court order. He said nothing to offend her. His presence in the Starbucks parking lot, in the hope of taking the child home after the police assisted, could not be construed as a form of stalking.

[111] In fact, in light of the mother’s conduct in denying him access, the father had reason to feel that he had no option but to involve the police. It turns out, for reasons described below in regard to a police enforcement term to my order, that involving the police is not helpful and should not be repeated unless as a last resort. ButI have to credit the father for not attending at the mother’s home himself to insist on his access. That could have been a disaster.

[112] The mother described the father’s having emerged from his condo and driving to Milton on March 13, 2020 as a violation of COVID-19 protocols. Butnothing in the evidence shows that the father sitting in his car in a parking lot, awaiting the police and his son, amounts to a violation of those protocols.

[113] In conclusion on these allegations, all of they offer is another illustration of both the mother’s exaggerated response to the father’s refusal to forgo his access and the great mutual distrust in this family.

The Irony in Allegations of the Father’s Secrecy – R’s OHIP Card

[114] The mother argues that the father is not to be trusted because he is secretive. But she too is secretive. Equally so. The mother so distrusts the father that she refuses to provide him with the even a copy of the child’s OHIP card during access periods or the name of her husband.

[115] If the father wants to take the child to the doctor during his time with the child, the mother insists that she attend, at which time she will bring the OHIP card. Nothing of the sort was ordered by either Walters J. or Henderson J. A problemin that regard arose when the father had to take the child to a hospital in Niagara Falls over this past Christmas holiday with no OHIP card. The mother not only took him to task for taking the child without her and for his purported delay in contacting her (he says that he did so as soon as the child was triaged), she also berated him for the medication prescribed by the hospital emergency doctor. She did this because her family doctor disagreed with the prescription. She even accused him of irresponsibility for saying that the matter of the proper medication was a matter of dispute between the two doctors.

[116] The mother effectively asks me to assume that the hearsay prescribing opinion of her family doctor should serve two purposes. First, that the GP’s “opinion” should trump that of the emergency room doctor. Even more, this disagreement should be taken as evidence of the father’s improper parenting. Those assertions represent many bridges too far.

[117] At the end of the day, it is unclear what nefarious deeds she feels that the father will perform with a copy of the child’s OHIP card. But the release of such a card for access periods is a matter of routine in access orders. I see no reason that at least a copy cannot be given to the father.

The Mother’s Refusal to Identify her Husband

[118] I have never seen a family law case where a parent refuses to disclose the name of her husband to her child’s father. But that is what the mother does here. She goes so far as to rely on the hearsay evidence of her husband in her first affidavit in this motion (“ my husband advised me, and verily believe …”), while refusing to name him. Henderson J.’s findings do not entitle her to have it both ways in that manner. Sub-rule 14(19)(a) of the Family Law Rules requires a deponent relying on the information of another person to identify that person “by name”.

[119] The mother says that she is so circumspect because the father’s alleged “ stalking and harassing behaviour”. I have already dealt at length with that unproven allegation.

[120] The high-handed response of the mother’s lawyer to the father’s inquiry about the identity of her husband is telling. In his October 2018 letter, Mr. Viater offhandedly refused to provide the spouses’ name and then brusquely added:

… the person she lives with has never been charged with criminal offenc e, does not have criminal record and has never had any child protection matters. This should alleviate any issues. Providing the name of any person she resides with or her relationship status is irrelevant for Mr. Rana's purposes".

[121] Irony abounds in this tart response. First, the father can answer to a similar description. Second, the wife claims that the father is “secretive” in that she says that he refuses to disclose where he lives or works in New Jersey. She says that he refuses to release a copy of his Etobicoke lease (which he does in his reply affidavit). Yet she refuses to even name her husband, the step-father of her child (who calls him “Papa”). As the father’s counsel has pointed out, the mother is required to disclose the name of any person with whom she resides at para. 10 of the Form 35.1 affidavit that she will be required to file.

[122] The mother goes on in her first affidavit, stating that the father wants her husband’s name “for nefarious purposes”. The Oxford Canadian Dictionary defines the term “nefarious” as an adjective for “wicked; iniquitous”. Having made that bald allegation, she fails to set out what wicked or iniquitous purposes the father has in mind, let alone how she knows what is in his mind. Unfortunately, as I have already noted, that pattern of broad rhetorical accusation, made without evidentiary foundation other than Henderson J.’s credibility findings, plays itself out throughout much of the mother’s evidence.

Numerous Problems with the Evidence of the Therapist, Ms. Shergill

[123] While the mother places great emphasis on the evidence of the therapist, Ms. Shergill, I find that her evidence is unreliable and unpersuasive. I say this because:

1. Despite signing a Form 20.1 Acknowledgment of expert, she is not an independent expert. Even if I were to assume her expertise (which, as a gatekeeper of expert evidence, I am not entitled to do. See: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182), at best, she is a participation expert.
2. Nothing in Ms. Shergill’s affidavit or CVsets out what she claims to be her area of expertise. She is clearly a licenced psychotherapist. But she demonstrates no expertise in child psychotherapy, child psychology or in interviewing children without leading them.
3. Ms. Shergill’s CV discloses that she has a Master of Science degree in applied behavioural analysis. She is an adjunct professor at Seneca College, teaching courses in AcquiredBrainInjuryand Gerontology. These seem to be the areas of her expertise.
4. The only references in Ms. Shergill’s CVto children being part of her training, teaching or psychotherapeutic practice are the following elliptical bullet point statements regarding her psychotherapeutic practice:
   • Setupprogramandcurriculumforchild, includingpreferenceassessments
   • Providedfeedbacktosupervisorandparentsonchild'sprogress. I am frankly unable to attach any meaning to those statements. Detached as they are from any context in her CV, they seem to be non-sequiturs.
5. Ms. Shergill offers no reportor opinion which would help to place the child’s statements, as recorded in her notes, into any context. The only statement that she makes in the body of her two-page covering affidavit about the contents of her notes is one sentence. There she states:

   [b]ased on my experience and observations I believe that his comments to me accurately reflect what he perceives. [Emphasis added]. However she offers no explanation for that bald statement. What in her expertise and observations lead her to that conclusion?How does she knowthat this seven-year old is able to accurately orally reflect his perceptions to her? The court is left to guess.

6. For the reasons set out above, I cannot find that Ms. Shergill is an expert in any issue that is material to this proceeding. If anything, Ms. Shergill is merely a fact witness, setting out what the child said to her. But her notes offer no context to the manner in which the child’s alleged statements were elicited.
7. Ms. Shergill amended many of her notes well after the fact without explaining the reason(s) for the amendments. In her sur-reply affidavit, the mother disclosed that those amendments were made at her behest. The mother explained that she reviewed the therapist’s notes. That review must have occurred prior to their placement in Ms. Shergill’s affidavit. Themother noticed that the therapist “failed to flesh out” “certain things” in her notes. That elaboration was required “in case a judge now needed to review them”. The mother asked the therapist to “flesh” those “things” out for this court’s review. According to the mother, Ms. Shergill complied.
8. The evidence of the mother’s request that Ms. Shergill amend her notes is conspicuously absent from the notes themselves or the body of Ms. Shergill’s affidavit. While that affidavitmentions the amendments, it fails to explain them or even mention the correspondence and/or conversations with the mother that led to those amendments. Those omissions alone are fatal to the court’s reliance on the therapist’s notes as reflecting any independent or objective record of the child’s therapy sessions.
9. I must also be careful about relying on those notes in the absence of any proof of Ms. Shergill’s expertise in interviewing or treating children. Much of the focus of her sessions was on the father. However her notes do not explain whether that was because of the spontaneous expressions of the child, the direction of the therapist or the instructions of the mother.
10. Neither Ms. Shergill’s covering affidavit nor her notes sets out the ostensible purpose and goals of the therapy. They do not disclose what, if anything,the mother said to the therapist to explain why she brought the seven-year old child in to therapy. Nor do we know what, if anything, the mother said about the father to the therapist that may have influenced the sessions with the child.
11. The therapy notes themselves are hearsay. Without more, they cannot be relied upon for the truth of their contents. Nor can I accept Ms. Shergill’s opinion that the child’s statements accurately reflect his perceptions. If anything, they simply reflect a recitation of some things that the child said, which may reflect his state of mind at the time of the therapy sessions. But even that is not helpful absent the missing context that I set out above. In short, they are not helpful.
12. Finally, and in any event, the notes are not relevant to the key issue in this urgent motion: whether it is safe for the father to continue to exercise in-person access during this COVID-19 crisis. That is the reason that I found this motion to be urgent. If the mother felt that the “brainwashing” issue were urgent, she would have moved to change the access months ago. Further, the mother has offered in-person makeup access after the Corona virus threat ends. Assuming her good faith in that offer, she could not havefelt that the brainwashing issue would have prevented nine straight days of makeup access in the future.

Conclusion Regarding Strong Prima Facie case

[124] I accept Mr. Viater’s argument that this present crisis was not anticipated by Henderson J. But he did anticipate that access was in the child’s best interests. He did not find it in the child’s best interests to be separated from his father for months, if not more. I again point out that the caselaw cited above shows that COVID-19 does not automatically overturn all prior parenting orders or the importance of a child’s contact with both of his or her parents. The opposite is presumed.

[125] While the mother comes by her historical distrust of the father honestly, her subjective feeling about him cannot determine this motion. To succeed, her feelings about the father and her assumptions about his motivations must be grounded in evidence. That evidence must besufficient to demonstrate a strong prima facie case calling for a variation of the Henderson J. access order. Evidence sufficient to do so is absent here. In sum, the mother has failed to prove a strong prima facie case for an interim variation of Henderson J.’s order that would suspend the father’s in-person access.

[126] Henderson J. did note the level of distrust between the parties. He placed much of the blame for that state of affairs at the feet of the father. The narrative and correspondence described above shows that since Henderson J. released his endorsement, that level of distrust has likely increased. So too has the parties’ level of animosity. Each parent feels victimized by the other, is unwilling to compromise with the other and is unable to effectively communicate with the other. With the events recounted in this decision, both parties now have reason to accept responsibility for that state of affairs. The inevitable result of a continuation of the present state of affairs will simply be emotional harm to R.

Issue No. 3: Has the Mother Demonstrated a Clear Case of Hardship?

[127] The answer to issues no. 1 and 2 should suffice to resolve this motion. However I briefly answer the two following questions simply to amplify the points raised above.I find that the hardship that the father would experience, potentially being cut off from his son for months on end, would be far greater than the hardship the mother would experience in the form of anxiety about the father’s allegedly bad intentions. That finding is particularly salient in light of my findings regarding the evidentiary basis of her claims against the father.

[128] Most importantly, R would suffer the greatest hardship if he were deprived of the presence of his father for the indefinite term of the present pandemic. At his age, that hardship may never be made up. He has already gone two months without seeing his father. In short, it would not be in R’s best interests to suspend the Henderson J. order.

Issue No. 4 : Is the Relief Requested Urgent?

[129] This portion of the test is not identical to the test of urgency under the Notice. I do not find that the relief requested by the mother is urgent. In fact, as I have already determined, it is contrary to the child’s best interests.

[130] However I find that this motion is urgent as defined under the Notice because without a court ruling, father and seven-year old son may be physically separated for an indefinite period of time. The urgency is the risk of a significant diminishment of the bond between father and son at a particularly vulnerable period of the child’s life.

No Police Enforcement Term to Order

[131] I advised the parties during the hearing of this motion that I am not inclined to grant the police enforcement term under s. 36 of the Children’s Law Reform Act requested by the father. In Patterson v. Powell, 2014 ONSC 1419, Pazaratz J. engaged in a comprehensive review of the case law on police enforcement clauses. Those cases show that police enforcement should only be limited to exceptional circumstances and as a last resort. Police enforcement should only be ordered when it is shown to be in the best interests of the child, after considering the risk of trauma of such a term to the child.That is particularly true for young children.

[132] Here, there is no history of a chronic refusal to allow access. Henderson J. found that the mother encouraged access. Until now, there have been no circumstances in which the mother refused access to the father. Even when the mother questioned the father’s decision to bring the child to Ottawa at a time that she feared a flood, she allowed the access. There is no reason to assume that she will disobey my order.

[133] I add that the mother has already lamented the attendance of the police at her home when she refused to allow access. She spoke of R’s alleged fear of policemen. Mr. Viater has assured me, and I accept that she will not place him in that position if I grant the father’s motion.I take her at her word. Accordingly, I dismiss that request without prejudice to the right to renew it if access is refused in the face of this order. In that event, the motion shall be before me.

Conclusion

[134] For the reasons set out above, I grant the father’s motion and grant a temporary order on the following terms:

1. The order of Henderson J. remains in full force and effect except as set out herein.
2. The father’s access shall resume on the weekend of April 24, 2020.
3. Until the end of May 2020, the father’s access shall take place on alternate weekends. That shall operate to make up for missed weekend access. The issue of when the missed full weekend makeup access will take place is adjourned to be spoken to at the first case conference of the motion to change in this matter.
4. The father will be entitled to three Skype visits with the child per week, on Monday, Wednesday and Friday at 8:00 p.m. The visits shall last for no more than 30 minutes.
5. Until further order: a. the father may only exercise his access while he resides exclusively in Ontario. Should he leave Ontario for the U.S., his access will be suspended until further order. b. neither party shall have guests in their home; c. neither party will attend as a guest in anyone else’s home; d. each party shall remain at his or her home at all times, except for essential services, brief excursions near their home for fresh air or to drive for grocery shopping or necessary errands.
6. The father shall produce a photocopy of his full passport to the Mother when this COVID-19 crisis ends.
7. The father shall prepare, issueand serve his pleadings for a motion to change within 30 days of the lifting of the suspension of this court.
8. I will remain seized of this matter. The parties will arrange a case conference before me after pleadingson the motion to change have been exchanged.
9. The issue of further make-up time, if any, will be canvassed at the first case conference hearing.
10. If the father is seeking his costs of this motion, he may file a two-page, double spaced submission, along with any bill of costs and authorities upon which he relies, within seven days. The mother may file her response within a further seven days. There will be no reply without my direction.

[135] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and is 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 and submit materials by Form 14B Motion Form to the court.

“ Marvin Kurz J. ” Electronic signature of Justice Marvin Kurz, Original will be placed in court file Dated: April 22, 2020

Footnotes

[1] For privacy reasons, I use only the child’s first initial to identify him.

[2] More formally described as The Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35