Court File and Parties

COURT FILE NO.: FC-13-1417 DATE: 2020/04/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: P.B., Applicant AND C.A.O., Respondent

BEFORE: Justice A. Doyle

COUNSEL: Erin Lepine/Ira Marcovitch, Counsel for the Applicant Respondent: Self-represented

DATE: April 24, 2020 by teleconference

Endorsement

[1] This is a motion brought on an urgent basis by the Applicant father for a suspension of access by the respondent mother to their son C.A.B. who is 7 years old. On April 21st, I deemed it to be urgent as there were serious allegations that the mother was not complying with the COVID-19 directives and she was not informing the father of the measures she was taking to minimize the risk to C.A.B..

[2] The Court considered the following:

• The father’s affidavit sworn April 16, 2020 and attached exhibits; and
• The mother’s affidavit sworn April 24, 2020 and attached exhibits.

[3] I had completed the trial in December 2019 and rendered my costs order in February 2020. The Order has not been issued. Therefore, I am not functus and prepared to entertain this motion as part of the original action.

Background

[4] The parties did not cohabit or marry. They had one child of their relationship, C.A.B. born […], 2013.

[5] The mother has three other children and the father has four other children with his current wife Daphney.

[6] On December 10, 2019, after a 6-day trial, the Court ordered, among other things; the following (“Final Order”):

• The Applicant father, P.B., shall have sole custody and primary residence of C.A.B.;
• Ms. C.A.O. will have parenting time with C.A.B. as follows:
  • Every Wednesday from 2:30 P.M. (when she will pick him up from school) until 6:15 P.M. and the parenting exchange will take place at the St. Laurent Shopping Centre at 6:15 P.M.;
  • Every alternate weekend as follows:
    • From 9:00 A.M. until 6:15 P.M. on Saturday with drop off at the mother’s residence in the morning and pick-up at the St. Laurent Shopping Centre.
    • From 9:00 A.M. until 6:15 P.M. on Sunday with drop off at the mother’s residence in the morning and pick-up at St. Laurent Shopping Centre.

[7] The Final Order also provided for access to the mother during Christmas Holidays, summer holidays, March Break and Mother’s Day.

[8] There will be a review of mother’s access to C.A.B. after June 2022 at which time, C.A.B. will have had a few years of therapy and completed some occupational therapy at the Children’s Hospital of Eastern Ontario. At that time, C.A.B. will be a little older and the structure and routine of this current schedule will have been in place for 2.5 years.

[9] The Court also made orders regarding child support.

Father’s Position

[10] The father indicates that he is very concerned for the health of C.A.B. and his wife Daphney and his other four children. His wife and their youngest child, Mikah, are both considered vulnerable persons at risk of infection. Mikah has been susceptible to respiratory issues and during flu season experiences croup or croup-like symptoms. His doctors have advised that he is at higher risk of complications should he contract the virus.

[11] His wife is pregnant and is due in three weeks. He indicates that once the baby is born, the baby will have to stay in isolation for 6-8 weeks and he will not be able to have contact with his new baby until he has self-isolated.

[12] The father is a RCMP officer in the prime ministerial protective division. Until he takes his family leave commencing on May 17, 2020, the mother’s lack of compliance could expose him to the virus which also could expose others at his employment.

[13] He alleges that the mother has taken C.A.B. to grocery stores, fast food restaurants, on public transportation and she refuses to advise him of what steps she has taken to mitigate the risk to her and C.A.B.. She will not divulge where she has taking C.A.B. during her time with him and with who he has been interacting. Originally, the mother insisted on continuing access exchanges at the St. Laurent shopping mall, despite the warnings to avoid such places.

[14] If the mother does not take the proper precautions and C.A.B. contracts the virus, it will jeopardize his health, and the rest of the family’s health. It will also force him to be removed from his siblings.

[15] The father has attempted to negotiate with the mother by offering to driving C.A.B. to her home to avoid him taking public transportation. She eventually agreed but the father could not complete all dates and times as set out in the Final Order as he was still working. He had suggested when he was working she could drop C.A.B. at his home to avoid public transportation or alternatively, they arrange alternative dates for access.

[16] For the April 1st meeting, the transportation could not be agreed on. The father also offered Facetime with C.A.B. in addition to rescheduling access. The mother would not accommodate his requests so the April 1st visit did not proceed. This has been the only missed visit.

[17] After the April 8th four hour visit with his mother, the father picked C.A.B. up from the mother’s home at the end of the visit. C.A.B. told him that they had taken multiple buses that day, and went to the grocery store together. He asked her about it and she said “I deny all allegations”. He indicates that has been the trend of her past communications with him, i.e. adversarial and not cooperative.

[18] On April 10th, C.A.B. was dropped off at the father’s residence after the visit, with the rest of her children in the back of the taxi and with pizza boxes in hand.

[19] On April 11th, the father picked up C.A.B. from the mother’s residence and C.A.B. told his father that they took buses and trains and went to Harvey’s for lunch.

[20] The father is concerned that she is not following public health directives to limit outings and she continues to use public transportation when it is not necessary as the father has volunteered to complete the transportation, subject to his work schedule until he takes family leave commencing May 17, 2020. He has attached the parties’ Family Wizard communications which indicate the negotiations between the parties regarding access and transportation.

Mother’s Position

[21] The mother indicates that she has been abiding by all Public Health recommendations and she requests that the father be responsible for all drop off and picking up of C.A.B..

[22] She has been following the COVID-19 directives including:

• Staying home with the children and not working;
• Avoiding all non-essential trips;
• She and the children have not been gathering in groups;
• They have not been in contact with people in high risk categories such as older adults and those in poor health;
• The children play in the backyard;
• She and the children ensure that they remain 2 metres from others;
• They have been avoiding crowded places and non-essential gatherings;
• They have been washing their hands regularly with soap and water for at least 20 seconds;
• They used alcohol-based hand sanitizer if soap and water are not available;
• They do not exhibit any symptoms of COVID-19 and they have not travelled outside the country.

[23] With respect to the father’s other allegations, the mother indicates that she does not have third parties who are available to supervise the children when she attends grocery shopping. She ensures that she and the children follow the store protocols and that they use hand sanitizers before and after shopping.

[24] The mother indicates that the father is aware that she does not have a vehicle and is required to use the essential service of public transportation. Again, she ensures that the children do not touch any poles on the bus and use hand sanitizers and practise social distancing.

[25] Regarding April 8th visit, the mother states that she had to pick up C.A.B. at his home in Orleans as the father said he was not available to drop him off, and she had to take public transportation.

[26] She claims that she has been sharing information with him as to the steps she is taking to adhere to the COVID-19 safety measures.

[27] She did not have access to C.A.B. on April 10th so his allegations as to what took place on that day are untrue.

[28] On April 11th, the father only facilitated access by dropping off C.A.B. and she denies taking trains or buses to Harvey’s.

[29] The mother indicates the father was not being truthful that he was working so he could not effect transportation for access visits. When she dropped off C.A.B. on April 11th and April 12th, both family vehicles were in the driveway.

[30] She denies the father’s allegation that C.A.B. has been playing violent video games but rather she has purchased an online learning tool for him to learn.

Analysis

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

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

[33] Routine is important for C.A.B. and it is also in his best interests that he have regular contact with his mother and siblings. It is noted that the Final Order notes the importance of routine to C.A.B..

[34] The parties’ communication is via Family Wizard and some of those communications have been filed with the Court.

[35] The Family Wizard communications confirm that the parties have challenges in communications and resolving their differences, which include make-up access; who will be responsible for dropping off of C.A.B. for access visits and confirmation of proposed access times.

[36] However, it is crucial that parties communicate with respect to their efforts to comply with COVID-19 directives as set out in Justice Jarvis’ decision of Balbontin v. Luwawa, 2020 ONSC 1996. The importance of complying is also set out in Ribeiro v. Wright, 2020 ONSC 1829.

[37] The father’s parents who had previously assisted in the transportation have been self-isolating and are no longer available to assist.

[38] Despite these challenges, the parties agreed that the St. Laurent mall exchanges were no longer feasible in light of the COVID-19 directives, and have made alternative arrangements for transfer of C.A.B. but not without numerous communications and sometimes lack of consensus regarding details.

[39] However, I note that the mother was forthcoming with her efforts to comply with the health directives in answer to this motion. These details should have been disclosed earlier.

[40] There continues to be mistrust between the parties. For example, the father indicated that he could not provide transportation on April 11 and 12 at 6:15 p.m. due to his work schedule and she did not believe him as she said there were two vehicles in his driveway suggesting that he was inside his home.

[41] The mother vehemently denies the father’s allegations and without cross-examination of the affidavits, the Court must make credibility findings based on the materials filed.

[42] The Court finds that it is in the best interests of C.A.B. that the mother have regular time with him. Provided that the mother and the father follow the COVID-19 protocol and directives, the risk to C.A.B. and his family members will be minimized.

[43] The status quo whereby C.A.B. enjoys regular contact with his parents and his family members should not be lightly interfered with unless there are compelling reasons to do so.

[44] I find that the access schedule as set out in the Final Order should continue. It is in C.A.B.’s best interests that a temporary solution be crafted to allow him time with his mother and siblings provided that his exposure to COVID-19 are minimized.

[45] Until further Order of this Court, the mother’s access to C.A.B. will be subject to the following conditions and restrictions:

• Each parent shall ensure that all members of their households will follow the most current Ottawa Public Health advisories. Each parent shall immediately advise the other parent forthwith, if there is any reason to believe that a member of their respective household may have been exposed to COVID-19 infection and shall notify the other parent forthwith, in writing with the detailed information regarding the potential exposure and steps that have been taken as a result of this exposure;
• Within 24 hours after every visit with the child, the mother will communicate with the father via Family Wizard to indicate where the child was during the whole time with his mother and who he was in contact with;
• Until further Order of this Court or until the emergency measures for Ottawa have been publicly ended, and on a without prejudice basis, the father will continue to provide all the transportation of the children to facilitate the parenting schedule. However, if he is unable to do so due to his work schedule or an emergency, then the father will suggest, via Family Wizard, three alternative make-up visits and the mother may choose one of those alternatives within 24 hours;
• The parents are to the best of their ability avoid public transportation to transport C.A.B. while he is in their care. Public transportation shall be a last resort; and
• In the event that a parent believes that the other parent has breached a condition of this Order, the matter may be brought back before me upon 3 days’ notice by contacting the Trial Coordinator.

[46] Costs reserved.

Justice A. Doyle Date: April 24, 2020