Court File and Parties

Pembroke Court File No.: 16-143-02 Date: 2020-04-22 Superior Court of Justice - Ontario

Re: Christina Faith Blaskavitch, Applicant And: Christopher Donald Smith, Respondent

Before: Honourable Madam Justice A. Trousdale

Counsel: Christina Faith Blaskavitch, Self-represented Jessica Fuller, Counsel for the Respondent

Heard: April 17, 2020 at oral hearing by telephone conference due to Covid-19

Endorsement

[1] Covid-19 resulted in regular Superior Court of Justice operations being suspended effective March 17, 2020 other than for urgent matters pursuant to the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings from the Chief Justice of the Superior Court of Justice dated March 15, 2020. Some additional services are now available pursuant to a further Notice to the Profession from the Chief Justice dated April 2, 2020 as well as pursuant to Regional Notices, all of which are filed on the Superior Court of Justice website.

[2] This is a motion brought by the Applicant mother on the basis of urgency for an order that the child should reside with her during the duration of the Ontario State of Emergency, the City of Ottawa State of Emergency, and the County of Renfrew State of Emergency, as well as for an order that once the aforesaid States of Emergency are terminated, the child shall reside with her and with the Respondent father on a week about basis until the child returns to school.

[3] The Respondent father brought a cross-motion on an urgent basis for a number of heads of relief including an order returning the child to the care of the father who has primary care of the child pursuant to a Final Order made September 30, 2020 and permitting police enforceability of the order, and for an order that the father have temporary decision making authority for the child on a without prejudice basis, and that the mother’s access be supervised or otherwise in the discretion of the court.

[4] By an endorsement dated April 6, 2020, I found that parts of the mother’s motion and the father’s cross-motion were urgent and that an oral hearing by teleconference should be set for April 17, 2020.

[5] The father had initially brought his cross-motion on an ex parte basis. In my endorsement dated April 6, 2020, I made a temporary without prejudice order that the mother return the child to the father on April 7, 2020 with police enforcement if necessary, and that the mother’s access be temporarily suspended pending the oral hearing. I also ordered that all of the father’s material and my temporary order be forthwith served on the mother by email.

[6] Each of the parties was given an opportunity to serve responding material on the other although the dates for serving and filing were necessarily abbreviated as I was concerned that this matter needed to be heard and resolved as quickly as possible because of the high conflict between the parties which potentially put the child at risk.

[7] I have reviewed the affidavits of the Applicant dated April 2, 2020, April 9, 2020 and April 15, 2020, and the affidavits of the Respondent dated April 3, 2020 and April 9, 2020, and I have heard and considered the submissions at the oral hearing by teleconference on April 17, 2020.

Background

[8] The Applicant is the mother and the Respondent is the father of the child to whom I will refer as NRBS, born May 3, 2015. Both parties are Members of the Department of National Defence. The mother lives in Ottawa. The father lives in Petawawa and has primary care of the child pursuant to a Final Order made September 30, 2019.

[9] The parties separated when the child was approximately 9 months old.

[10] The mother initially had sole custody of the child.

[11] Pursuant to the consent Final Order made on April 28, 2017 the mother was to continue to have custody of the child for the next year at which time the parties were to have joint custody of the child without the need for a material change in circumstances, and the father’s parenting time was to expand. The father subsequently brought a Motion to Change that order.

[12] The parties had a trial in November, 2018. The decision was released on August 1, 2019.

[13] In the meantime, the father was deployed to Mali from January, 2019 to July, 2019 which had been a known deployment at the time of trial. The child continued to reside with the mother in Petawawa until some time in the summer of 2019.

[14] Before the release of the decision of August 1, 2019, the Applicant was posted to Ottawa and moved her residence and the child’s residence to Ottawa where she registered the child in school.

[15] The Final Order made August 1, 2019 granted joint custody of the child to the mother and the father with the child to reside in Petawawa and to go to school there. The father had specified parenting time with his time to increase to week on/week off by July, 2020. It appears that the mother has appealed that Final Order to the Ontario Court of Appeal, but the appeal has not yet been heard.

[16] The mother refused to move her residence or the residence of the child back to Petawawa. The father brought the matter back to court in September 2019 to enforce the Final Order made August 1, 2019.

[17] On September 30, 2019, a Final Order was made which ordered that the child be returned to Petawawa and that the child be in the primary care of the father. The mother continues to reside in Ottawa. The September 30, 2019 order provided that the mother is to have parenting time with the child two weekends in a row with the Respondent to have the child on the 3rd weekend and the same schedule repeating thereafter. Holiday time remained as per the Final Order made August 1, 2019 which also incorporated some holiday terms from the final Order made on April 28, 2017.

Positions of the Parties

Position of the Mother

[18] The mother is seeking that so long as there is a State of Emergency declared in the Province of Ontario and in the areas where the mother and the father reside, the parties’ son, who is now almost 5 years old, should reside with her. The mother’s position at the hearing is based upon the father’s partner working as a personal care worker at a long-term care facility. The mother argues that the father’s partner will be physically touching residents living at the long-term care facility in order to provide care to them, and therefore the occupation of the father’s partner poses a serious risk to the child because the partner will be more apt to be exposed to and/or to contract Covid-19.

[19] The mother submits that it would be safer for the child to live with her during the period of the States of Emergency as she is not required to go to work at this time due to her current health status with her employment. She and the child are able to self-isolate which would be better protection for the child than in the father’s household where the father is being called in sometimes to work and where his partner, who lives with him, is a personal support worker.

[20] The mother had asked the father and subsequently his counsel prior to bringing her urgent motion what the nature of the health care is in which the father’s partner is involved, but each of them refused to provide any further information to her prior to her bringing her urgent motion, other than that the father’s partner was not working at this time and wouldn’t be returning to work until mid-April.

[21] Upon the aforesaid States of Emergency no longer being in effect, the mother seeks that the child spend week about time with each of the parents until the child returns to school. The mother argues that for almost the whole of the child’s life, the child has lived with her, and that it is in the child’s best interest that if he is not in school that he reside week about with each of the parents.

[22] The mother argues that the father refuses to co-parent with her and that this leaves her trying to co-parent through the father’s lawyer.

Position of the Father

[23] At the hearing of this motion on April 17, 2020, as the child had already been returned by the mother to the father’s care pursuant to my temporary order made April 6, 2020, the father on his cross-motion sought only to return to the usual schedule for the mother’s time with the child which is governed by three existing Final Orders providing for parenting time and holiday time, being the Final Order made September 30, 2019, the Final Order made August 1, 2019 and the Final Order made April 28, 2017. The father advised at the hearing that he was not pursuing any of the other requests originally set out in his Notice of Motion.

[24] The father’s position is that the mother has shown by her behaviour both after March Break, 2020 and in September 2019 that she does not comply with court orders. He states that he recognizes that the mother plays an important role in the child’s life, but that flexibility does not work well for the parties or for the child. It just ends up with the parties being back in court when the mother overholds the child.

[25] The father submits that the parties have been to court several times to determine the appropriate schedule for the child and that there has been no material change in circumstances to justify changing the three relevant Final Orders now in place. There is the presumption that the current Final Orders have been made in the child’s best interest. His position is that although school is not open at this time, the child resides with him in Petawawa and that the child’s regular routine and stability in Petawawa needs to be continued subject to the mother’s existing parenting time.

Issues

(1) Should there be a temporary change in the regular parenting schedule to provide that the child reside with the mother during the ongoing States of Emergency because of the occupation of the father’s partner as a personal support worker in a long-term care facility? (2) Should there be a temporary change in the regular parenting schedule to provide that the child reside on a week about basis with each parent during the period that the child is not going to school as Ontario schools are closed due to the Covid-19 crisis?

Analysis

[26] According to the existing Final Orders, March Break of 2020 was to be equally divided between the parties. The father offered that the mother could have the child with her for the whole of the March Break in 2020 commencing March 13 and ending on March 22. The child was supposed to be returned to the father on March 22, 2020.

[27] Subsequently, the father was called in to work from March 24 to March 26. He suggested to the mother that he have the child March 21 to 23 and again from March 26 to 29 while the mother would have the child in between those two periods. The mother said she didn’t want to drive and didn’t want to do an exchange at the court ordered exchange point until March 26. The Respondent agreed but alleges that he told the mother that things could change quickly.

[28] On March 21, 2020, the father told the mother he was no longer required to work and informed her would be picking up the child from her residence in Ottawa the next day on March 22, 2020 at 6:00 p.m. The mother did not agree and stated that the parties had agreed to March 26 for the return. The father said he would be bringing the police with him. The Ontario State of Emergency and the local States of Emergency had arisen after the child came into the mother’s care for March Break. The Applicant at one point in their communication seems to suggest to the Respondent in a text that she intended to keep the child with her until the ban was lifted. She also mentioned the ban might be off by March 31 and she and the child would see him then.

[29] On March 22, 2020 at 6:00 p.m. the Respondent attended at the Respondent’s residence to pick up the child with an escort of two Military Police Officers, because he states he was concerned about the Applicant’s previous non-compliance with court orders. The Respondent says the Applicant refused to answer the door. The Respondent alleges that the Applicant was swearing and yelling at the Military Police and she called the Ottawa Police to assist. The child could be heard crying and upset during this confrontation that took some two hours. The Respondent says that in order to de-escalate the situation he and all the police officers left.

[30] The mother’s evidence is that she and the father had agreed that the child would be with her until March 26, 2020 and she argues that the father showed no respect for her in his last-minute breach of the agreement and in bringing the Military Police to her home, which greatly upset both her and the child. She told the police about that agreement when they came to the door. The mother argues that the father purposely escalated the situation.

[31] I find that there was an agreement between the mother and the father that the child would stay with the mother until March 26, 2020, which agreement the father unilaterally attempted to revoke with little notice. However, the mother for her part, did not subsequently return the child to the father on March 26, 2020 or afterwards until ordered to do so by the temporary order of April 6, 2020.

[32] On March 24, 2020, the mother advised the father that she was concerned about the father’s partner whom the mother had been advised by a letter dated September 6, 2019 from the father’s counsel to her that the father’s partner is working in the “health care field”.

[33] As previously stated, the mother requested information from the father and subsequently from the father’s lawyer as to what role the father’s partner had in health care. I find that the mother was not provided any information in that regard except that the father’s partner was not working at the time but would be returning to work in mid April.

[34] On March 25, 2020, the Respondent brought an urgent motion for the return of the child to him. That motion was dismissed as being premature.

[35] On March 26, 2020 the child was not returned to the father. The mother argues that the father could have offered to pick up the child at her home because of the dead battery in her car but that conflicts with documentary evidence filed by the father that the father’s lawyer offered to her that the father would pick up the child at the mother’s residence on March 26.

[36] On April 2, 2020, the mother brought her motion on the basis of urgency.

[37] On April 3, 2020, the father brought his motion on the basis of urgency on an ex parte basis. The evidence of the father in support of his Motion is that the mother had given various different reasons over the last couple of weeks as to why she had not returned the child to the care of the father despite the Final Order dated September 30, 2019 that the child was to be in the primary care of the father. Some of those reasons were: (1) her attempt to obtain a letter from Telehealth that the child should remain with her during the pandemic. (2) her car battery being dead. (3) her financial inability to purchase a new battery until she was paid at the end of the month. (4) her wish to have more time with the child than two out of three weekends if the child is not in school because of the Covid-19 pandemic. (5) the serious risk to the child as the father’s partner is employed in some capacity in the health care field.

[38] On April 6, 2020, I released my endorsement regarding urgency and ordered the child to be returned to the father’s care. I noted that the child had initially gone to the mother’s home for a one week visit and by that time he had not seen the father for over three weeks.

[39] On April 7, 2020, the child was returned by the mother to the care of the father in accordance with my temporary order. I had made an order for police assistance although I stated I hoped it would not be necessary. Although I had urged the parties to co-operate with each other and to make the exchange as peaceful and calm as possible for the sake of the child, the evidence is that there were at least a couple of Military Police in attendance which again was distressing to the mother and the child. The father claims they insisted on being there to keep the peace, although he asked them to stay around the corner.

[40] Upon the father subsequently filing responding material to the mother’s motion, he advised that his partner is working at a long-term care facility. He did not provide any detail as to what her role is in that long-term care facility. He stated that the mother has difficulty with boundaries and that he did not wish to have his partner’s career jeopardized by the mother’s lack of boundaries and provision of personal information to others as he alleges she has done in the past.

[41] At the hearing of this matter, upon my asking what the role of the father’s partner was at the long-term care facility, the father’s counsel advised that the father’s partner is a personal support worker.

[42] I find that the father, having joint custody of the child with the mother, in the situation of a global pandemic ought to have given this information to the mother when she requested it, as well as advising the mother of the precautions that he and his partner are taking regarding Covid-19. It may not have satisfied the mother’s concerns, but the mother was entitled to know what, if any risks there were for the child in the home of the father during these States of Emergency. On the other hand, the mother should not have withheld the child from the father’s primary care contrary to the Final Order made September 30, 2019.

[43] In his responding affidavit to the mother’s motion, the father did finally set out in great detail the protocol in place at the long-term care facility to protect residents and staff, and the precautions that the father and his partner are taking in their home regarding Covid-19. As at the date of the father’s affidavit, there had been no cases of Covid-19 at the long-term care facility.

[44] On the evidence before me, I find that the father and his partner are taking all reasonable precautions regarding Covid-19 as recommended by health authorities. There are prescribed protocols at the partner’s place of work to protect residents and staff. The father’s partner is a professional and there is no evidence that she will not comply with those protocols. At this time, I find there is no cause for a temporary change in the residence of the child due to Covid-19 issues.

[45] The parties agreed at the oral hearing to re-start the mother’s parenting time with the child on the weekend of April 17, 2020. I find on the evidence before me there is no material change in circumstances for the court to make any change to the existing outstanding Final Orders that are in place and which already set out the times the child is to be with the mother. Although school is not in session at this time due to Covid-19, the child is in the primary care of the father in Petawawa and needs to have his regular routine continue. The child will be continuing to have two out of every three weekends in the care of the mother. If the parties wish between themselves to agree on some additional time for the child with the mother during the closure of schools, that is up to them.

[46] The mother acknowledges that she has a room-mate residing in her home who goes out to work doing computer work, returns home, and stays in his room. The father only became aware of this when he picked up the child on April 7, 2020 and this person answered the door.

[47] Although I am dismissing the motion of each party on a without prejudice basis, I do expect, without question, that both parties as joint custodians of the child will immediately keep the other fully informed of any person residing in their respective home who tests positive for Covid-19, or who has Covid-19 symptoms, or who is under quarantine, so that the parties can immediately discuss what, if any temporary changes to the child’s care or parenting time may be necessary. The Covid-19 situation is presenting very challenging circumstances to everyone. It is an emotional, distressing and fearful time for parents and children. Where the child is going back and forth between his father’s home and his mother’s home, it is essential for the best interests of the child and of all residents of both homes that there be ongoing immediate full disclosure between the father and the mother as to any Covid-19 issues regarding any person residing in either party’s home.

[48] I would urge the parties to try to co-operate with each other and to work together in the best interests of the child during this difficult time.

Conclusion

[49] On the evidence before me at this time, the motion of the mother is dismissed on a without prejudice basis.

[50] On the evidence before me, except as already dealt with, the motion of the father is dismissed on a without prejudice basis.

Costs

[51] I find that each party bears some responsibility for the unfortunate way that events have unfolded since March 13, 2020. The situation was exacerbated by the arrival of a global pandemic which is unprecedented in our times. Accordingly, I find that there shall be no order as to costs.

Justice A. Trousdale Date: April 22, 2020