Court File and Parties

COURT FILE NO.: FS-20-16415-00 DATE: 20200422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gregory Robert Monette Applicant – and – Laura Anne Coons-Monette Respondent

Counsel: Moldaver, J. and Yuen, A., for the Applicant Self-Represented, for the Respondent

HEARD: April 22, 2020 in Chambers

BEFORE: Shore, J.

Endorsement

[1] As a result of COVID-19, which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notices to the Profession dated March 15, 2020 and April 2, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed.

[2] The Applicant Father brought a motion to change the children’s residential schedule. I have reviewed the Applicant’s:

a. Notice of Motion b. Affidavit, dated April 21, 2020 c. Affidavit in Support of Claim for Custody and Access, form 35.1 d. Statement of Law e. Case Law

[3] The father's basic position is that:

a. He seeks to establish equal time-sharing in relation to the parties' two children, ages 14 and 10, on a week about basis, or in the alternative, primary residence of the children with him with access to the mother. b. The parties separated in July 2018. The children have been in the Mother’s primary care since at least September 2018. c. Commencing April 2019, the parties entered into an arrangement whereby the children resided with their father on alternate weekends (Friday to Sunday) and one evening a week for dinner. d. The Mother is a Registered Nurse. He says it is his “information” that she continues to work in a medical clinic and at a hospital and works at a COVID-19 testing facility. e. The Mother moved the children to reside with her parents in Barrie, Ontario so as not to unnecessarily expose them to increased risks. She did see them over the weekend. He says that “[i]t is unclear what safety-precautions were taken during Laura’s parenting time with the children that weekend”. f. The Father’s evidence is that Laura’s parents also reside with her sister, brother-in-law and children. Laura’s brother-in-law may be an “essential worker” employed by Enbridge and he may be leaving the home on a near daily basis. He also alleges that it is unclear whether Laura’s extended family is practicing self-isolation and/or following government safety protocols with regards to COVID-19. g. The Father acknowledges the children are happy at their grandparents’ home. h. It is the Father’s position that “[t]here is no reason why the children are residing full-time with their maternal grandparents when they can be residing with their father”. i. The Father’s affidavit goes into detail about his recent efforts to try to increase his time with the children. He has been trying to negotiate an equal time-sharing arrangement (although I question whether it is proper to include details of without prejudice settlement discussions). j. The Father has not had access to the children since March 20, 2020, when they returned from March break. k. He insists that access resume with the children residing with him for 50% of the time. In his affidavit, he submits that the “children are entitled to have maximum contact with both parents”.

[4] I find Justice Pazaratz’s comments in Ribeiro v. Wright, 2020 ONSC 1829, to be helpful in the case before me:

11. In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to - including strict social distancing.
12. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
13. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion - but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
14. Judges won't need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there's a problem. What we're looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.
15. e. Right now, families need more cooperation. And less litigation.

[5] There is a presumption that existing parenting arrangements should continue. COVID-19 considerations do not in and of themselves result in an urgent hearing or review of the existing parenting arrangements.

[6] In the motion before me, there are two separate issues to be addressed. The first is whether the father’s motion to change the children’s residential schedule is urgent. The second is whether the issue of the father being denied any access to the children is urgent.

[7] For the reasons set out below, I find that the father’s motion to change the children’s residential schedule is not urgent. The father is seeking to change the current residential schedule and specifically increase his time with the children. The father’s materials have not satisfied me that the children are not safe in their current environment or that the current arrangements need to be changed on an urgent basis. The children are in a safe environment with their maternal grandparents.

[8] The mother is a health care professional. I have to presume that she is aware of and will adhere to all recommended and required health care steps. I would be loathed to create a precedent penalizing front-line health care professionals for simply showing up to work and doing their job or creating additional pressures and concerns to their already stressful circumstances without real and substantive evidence.

[9] The father has not provided any real or substantive evidence. He has only provided conjectures about what “may” be occurring at the grandparents’ home or that it is “unclear” what steps were taken. The father acknowledges that the mother’s concern for the children is the very reason she placed the children with her parents and that the children are happy in their care. He has not met the onus of showing the “urgency”.

[10] The father may have good intentions to protect his children from exposure to the virus but such intentions cannot be used by him to change the custody of the child from the mother to the father or to use this opportunity to increase his time with the children and change the status quo. The fact that the father is not happy with the current arrangements does not make the issue urgent. The father has not convinced me that the children’s health or safety is at issue. As such, there is nothing urgent in this part of his request.

[11] The father’s motion to change should be properly brought as a Form 15 motion. The matter would then be dealt with in the ordinary course once regular court operations resume.

[12] The next question is whether his lack of access to the children since March makes his motion for access urgent?

[13] In Batchelor v. Batchelor, 2020 ONSC 1921, Pazaratz J., found that the motion for equal time sharing was not urgent but the motion for some access was urgent. Although not explicitly requested in his Notice of Motion, the issue of the father having some access should still be considered.

[14] The fact that the father has had no access to the children since March 20, 2020, would normally lead me to conclude that the matter was urgent. However, upon review of the father’s affidavit materials, it is evident that the mother did offer him some access, albeit not the equal time sharing he requested, and he therefore chose not to exercise his access.

[15] If the lack of his regular residential time with the children is of his own making, I cannot find the matter to be urgent.

[16] To be clear, if the mother is not prepared to allow him his regular time with the children, that is a different matter and the motion would be urgent. However, the father’s materials indicate that he refused the offered time with the children because it was not the equal time he wanted.

[17] I strongly encourage the parties to resume the regular residential schedule with the children. If the mother fails to permit the father’s access, then the father may bring the matter back for an urgent motion.

[18] Applicant father’s request for an urgent motion is denied.

[19] All parties are given notice that:

a. As per the practice direction, service and filing of the motion material are effective by email. b. The outcome of any hearing whether conveyed in typed or handwritten format is an order of the court enforceable by law from the moment it is released; c. Upon the courthouse reopening to the public, each party shall file with the Family Office a copy of all the material he, she, or it delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefore.

Released: April 22, 2020 S. Shore, J.