Court File and Parties

COURT FILE NO.: FC-18-FS053226 DATE: 2020-04-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lydia Danielle Lovric, Applicant AND: Eric Brian Olson, Respondent

BEFORE: Madam Justice Catrina Braid

COUNSEL: Emily Carroll, for Applicant Charles Morrison, for Respondent

HEARD: April 24, 2020 (On OPS Line 1-866-500-5845, 10:10am-2:50pm)

THIS MOTION HAVING BEEN HEARD BY TELECONFERENCE PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK

E N D O R S E M E N T

I. OVERVIEW

[1] On April 24, 2020, I heard an emergency motion, brought by Lydia Lovric, seeking to suspend Eric Olson’s in-person access to two of their children. The motion was heard via teleconference.

[2] The matter had been found to be urgent within the meaning of the Notice to the Profession of the Chief Justice of Ontario, dated March 15, 2020, by Endorsement of Madsen J. dated April 14, 2020, 2020 ONSC 2269. In that Endorsement, Madsen J. set out timelines for the filing of materials and directed that the motion proceed.

[3] Ms. Lovric (the mother) states that nine-year-old Brenner has serious respiratory problems and is therefore more vulnerable if he contracts COVID-19. Mr. Olsen (the father) disputes the severity of Brenner’s health issues.

[4] The mother complains that the father fails to self-isolate because he continues to have contact with his current partner and her children, who also spend time with their biological father. The main issue on this motion is whether the father’s blended family structure, which exposes the children to multiple households, creates a risk of exposure to COVID-19 that necessitates restrictions on the father’s time with the children, given the child’s claimed respiratory issues.

[5] At the end of submissions during the teleconference, I advised counsel that the motion was dismissed, with reasons to follow. I also made orders for the father to have parenting time commencing that same day and provided directions for the parenting schedule to resume. These are my reasons on the motion.

II. BACKGROUND

[6] The parties were married in 2001. They separated in 2017 and are divorced. They have three children together:

i. Delaney Rhys Olson (female), born October 24, 2005 (14 years old);

ii. Creighan Eric Olson (male), born April 27, 2007 (12 years old); and

iii. Brenner Keating Olson (male), born September 20, 2010 (9 years old).

[7] The mother is re-married and the father has re-partnered.

Parenting Schedule

[8] Pursuant to a separation agreement, the parties share joint custody of the three children. Delaney and Brenner share time at the home of both parents. Creighan has lived exclusively with the father since May 2019 and is not subject to the motion. In these reasons, I shall refer to Delaney and Brenner as “the children”, since they are the subjects of this motion.

[9] The separation agreement included a parenting schedule. After the separation agreement was signed, the parties entered into a new timesharing schedule for Delaney and Brenner, on consent. This schedule was the status quo as of April 11, 2020:

i. Children are with the father from Monday at 9am (or after school) until Wednesday at 9am;

ii. Children are with the mother from Wednesday at 9am (or after school) until Saturday at 9am;

iii. Children are with the father from Saturday at 9am until Wednesday at 9am; and

iv. Children are with the mother from Wednesday at 9am until Monday at 9am.

[10] On April 11, 2020, the children were not returned to the father's care after the mother's visit. The mother has withheld the children since that date, except for one occasion when she permitted the father to go for a walk with the children while maintaining social distancing.

Brenner’s Health Issues

[11] When Brenner was an infant, he was diagnosed with breathing issues, for which he has been prescribed medication such as Ventolin, Salbutamol, and Pulmicort. He also needed Prednisone on a number of occasions due to difficulties with his lung function. His former family physician (who treated Brenner until 2016) states that Brenner has a diagnosis of asthma.

[12] The parties disagree on the extent to which Brenner continues to have respiratory problems. The mother maintains that Brenner has serious respiratory issues. She provided the court with a copy of a several-page prescription print-out from a pharmacy showing Flovent and Salbutamol being provided for Brenner as recently as March 13, 2020.

[13] The father states that the Brenner’s respiratory issues have become less serious over time and are not currently significant. He says that, for years, Brenner has not presented cold symptoms above and beyond the ones experienced by his siblings. The father also says that inhalers are now prescribed as a precaution. Brenner shows no signs of asthma in everyday life and during rigorous exercise.

[14] Dr. Patrick Keating has been Brenner’s family physician since November 2017. On November 28, 2019, Dr. Keating examined Brenner when he had a cold. The doctor observed that Brenner’s chest was totally clear, but the doctor’s notes reflect that “mom [was] adamant that inhalers MUST be given with every cold right away” [emphasis in original]. The doctor did not feel puffers were needed.

[15] In a letter dated April 13, 2020, Dr. Keating stated the following:

I understand that there is concern re: what would happen should Brenner become ill with COVID-19. I think this is a reasonable worry for all parents and highlights the importance of socially distancing as much as possible. I agree that there is a global concern that patients with chronic lung disease, asthma included, may be at a higher risk of more serious symptoms if infected. However, asthma severity falls on a spectrum from very mild to symptoms to severe uncontrolled disease. My opinion is that Brenner has extremely well controlled symptoms at present, if he was indeed accurately diagnosed with asthma in the past…He does not require inhalers on a daily basis and does not endorse any exercise induced symptoms. He is not on any immunosuppressive medications and there have been no ER visits for asthma exacerbations since becoming my patient. These are all positive factors indicating well controlled disease . [Emphasis added]

The Father’s Blended Family

[16] The father has been in a long-term relationship with Daneen Constable since February of 2018. Ms. Constable has two children, age 8 and 3, who visit her ex-partner regularly, thus going back and forth between Ms. Constable’s home and their biological father’s home.

[17] The father and Ms. Constable have maintained separate homes due to financial and logistical reasons. The father and Creighan spent more than 50% of their time at Ms. Constable’s house, including overnight. Delaney and Brenner spend a significant amount of time with Ms. Constable, her two children, the father and Creighan.

[18] The five children have built strong, loving relationships with one another. The families have dinner together, go on excursions together, and spend holidays and birthdays together. Although they do not reside together, they spend a lot of time together as a blended family.

COVID Precautions

[19] The evidence of the father, Ms. Constable and her ex-partner describe specific and careful COVID-19 safety precautions taken at each of their households, including hygiene and social distancing.

[20] The father works from home. He orders groceries online and had stocked up in early March before the pandemic was declared. He practices handwashing and cleaning of grocery deliveries. He does not have anyone in his house other than Daneen and her two children. When outside, he and the children stay in the yard or walk around the neighborhood, staying more than 2 metres away from others.

[21] Ms. Constable swore an affidavit stating that she is an educational assistant and currently works from home. Ms. Constable’s ex-partner, Thomas Stanson, swore an affidavit stating that he has been off work since January 2020 and is upgrading his education online. Ms. Constable and Mr. Stanson described, in detail, the meticulous precautions that they follow in their own households to comply with public health guidelines surrounding COVID-19.

[22] After the mother raised concerns about the father’s contact with Ms. Constable, he contacted the following third parties to ask about his living situation:

i. Public Health raised no concerns regarding the living situation, as long as physical distancing was practiced outside of their blended family (along with other COVID-19 precautions).

ii. Family and Children Services had no concerns about the living situation. They stated that maintaining regular routines is important for the mental health of the children.

iii. Dr. Keating stated that they were taking reasonable precautions and that it is likely best for the children not to change their routines.

III. ANALYSIS

[23] These are exceptional and unusual times for everyone. A pandemic has been declared by the World Health Organization. Our world, as we know it, has changed dramatically. Directives from various levels of government are being declared on a constant basis.

[24] This should not result in a widespread suspension of in-person parenting time between a child and a parent: Chrisjohn v. Hillier, London SCJ Court File No. F1098/18, per Mitrow J.. Although the health, safety and well-being of children remains the court’s foremost considerations during the COVID-19 pandemic, it is presumed that meaningful personal contact between a parent and the children is in the children’s best interests.

[25] In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. set out principles regarding parenting issues in this difficult time:

a. In most situations, there is a presumption that existing parenting arrangements and schedules should continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing.

b. In some cases, a parent may have to forego scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness.

c. In some cases, personal risk factors through employment or associations, may require controls on direct contact with a child.

d. Further, lifestyle or parental behavior in the face of COVID-19 may necessitate restrictions on parenting time. There would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk.

[26] Parenting arrangements that have been established as the status quo should be adhered to, unless there are compelling reasons and evidence that satisfies a court that there should be a change. Their lives are already significantly disrupted due to lack of schooling and organized activities, and cancellation of businesses, social events, concerts, etc. Children need and deserve stability, comfort and predictability in their routine, and will benefit from being nurtured and comforted by both parents who have been part of their lives. This routine should only be disrupted if evidence has been established that the children’s health and safety are at risk.

[27] If a parent wishes to limit contact between a parent and a child during this crisis, they will be required to provide specific evidence or examples of behaviour by the other parent which are inconsistent with COVID-19 protocols. The parent responding to such an urgent motion will be required to provide 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.: Ribeiro.

[28] The following is a summary of the parties’ efforts to provide that evidence and those reassurances:

Mother’s submissions: father’s behaviour is inconsistent with protocols

[29] At this hearing, the mother states that the father’s continued contact with Ms. Constable is inconsistent with the COVID-19 social distancing protocols because they live in separate residences. The mother is concerned about Brenner being exposed to not just two households but four households, namely: the mother’s home, the father’s home, Ms. Constable’s home, and her ex-partner’s home.

[30] The mother’s affidavit, sworn the day before the hearing, includes a letter written by Dr. Shawarky, an infectious disease consultant at the University of Toronto. She relies on the doctor’s opinion, which states that exposure to anyone outside the “nuclear household” is “public exposure”.

[31] During submissions, I raised concerns about the propriety of a proposed expert opinion being filed in this manner. The mother’s counsel fairly conceded that including an expert opinion as an exhibit to a party’s affidavit is highly unorthodox, and that I could give the letter little to no weight. I decline to give the letter any weight.

[32] Many children spend time with parents pursuant to a court order, a separation agreement or an informal arrangement between the parents. In many of those cases, separated parents have partnered in new relationships with individuals who have children from prior relationships. There are many families in Canadian society who are blended or otherwise extended outside of the traditional “nuclear family”.

[33] I accept that exposure to more households can potentially increase the chance of contracting COVID-19. This does not necessarily mean that this risk cannot be managed with appropriate safety precautions.

Mother’s submissions re: Brenner’s health

[34] The mother submits that Brenner is at an increased risk if he were to contract COVID-19 because of his respiratory issues. However, the mother’s evidence does not establish that Brenner has a serious health issue. The family doctor who has treated Brenner over the last two and a half years is not even certain that asthma is a proper diagnosis. If Brenner does have asthma, it is mild and well-controlled. There is no evidence that he is at an elevated risk.

Father’s reassurances that COVID-19 safety measures are being adhered to

[35] As the responding party, the father has demonstrated that there has been and will continue to be fastidious compliance with COVID-19 protocols in all the households that the children are exposed to. Although the father’s living arrangements may not technically comply with restrictions requiring social isolating with people under the same roof, any risk is being managed by careful compliance with COVID-19 protocols.

[36] I find that it is in the best interests of the children that they continue spending time with their father in accordance with the agreement and the status quo. The father’s living situation, with his blended family, does not necessitate restrictions on his time with the children.

[37] Accordingly, the children are to spend time with their father commencing April 24 until April 29, 2020, following which the schedule will continue as set out in the parties’ agreement. Although the commencement of this schedule predates this endorsement, the parties were orally advised of this order on April 24, 2020 (following the completion of submissions) and directed to make arrangements for the father to commence his time with the children at 6pm that day.

[38] During submissions, counsel for the father provided a draft order that included terms that were not requested in any Notice of Motion. I decline to make any orders for which there has been no notice, unless they are on consent.

[39] The mother adopted a self-help approach, in contravention of the existing agreement and status quo. In her motion materials, she failed to mention that she had withheld the children. Withholding access for two weeks was completely inappropriate, and I expect that she will not do so again. During submissions, the mother agreed that she would arrange for the father to have “make-up time” with the children, if the court dismissed her motion.

IV. COSTS

[40] The father has been entirely successful on this motion and is entitled to costs. The father’s Bill of Costs exceeds $13,000, and counsel seeks $10,000 in costs. The mother’s Bill of Costs is less than $4,000, and counsel argues that the costs award should be significantly less than the amount sought by the father.

[41] Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended, sets out principles to guide the court regarding costs. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 grants broad discretion to the court regarding costs. The court may determine by whom and to what extent costs shall be paid: see M.(C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (C.A.).

[42] In determining the appropriate quantum of costs, the court must consider the reasonable expectations of the parties; the complexity and importance of the proceeding; and the conduct of the parties in litigation. I have considered these factors: see Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905.

[43] This was an urgent motion in the midst of the COVID-19 pandemic. Counsel made submissions on law that is evolving daily. The parties filed voluminous materials on these motions within the last 5 days. The factual and legal issues in this motion were of moderate complexity.

[44] The financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs: M. (A.C.) v. M. (D.), [2003] O.J. No. 3707 (C.A.); Fyfe v. Jouppien, 2012 ONSC 97, [2012] O.J. No. 18. The mother and her new husband are both currently unemployed. She is receiving child and spousal support, and received a lump sum amount as part of the separation agreement. I have taken her ability to pay into account in determining an amount of costs that is fair and just in this case.

[45] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.

[46] I find that a fair and reasonable award of costs is $5,000, inclusive of HST and disbursements.

V. ORDERS

[47] The court makes the following orders, not on consent:

1. The mother’s motion to suspend the father’s access is dismissed.

2. The children, namely Delaney Rhys Olson (female) (Delaney), born October 24, 2005 and Brenner Keating Olson (male) (Brenner), born September 20, 2010, shall resume the parenting schedule that existed as the status quo prior to April 11, 2020. To be more specific, the children shall reside with the father commencing April 24, 2020 at 6pm until Wednesday, April 29, 2020 at 9am. Thereafter, the parties shall abide by the following parenting schedule:

a. The children shall reside with the mother from Wednesday at 9am (or after school) until Monday at 9am;

b. The children shall reside with the father from Monday at 9am (or after school) until Wednesday at 9am;

c. The children shall reside with the mother from Wednesday at 9am until Saturday at 9am; and

d. The children shall reside with the father from Saturday at 9am until Wednesday at 9am.

3. The mother shall arrange 5 additional days (including overnights) for the children to reside with the father as “makeup time”, which shall be agreed to and completed by June 30, 2020.

4. The three children, Delaney, Creighan and Brenner may have contact with the father' partner, Daneen Constable, and her children Emmett Stanson and Benjamin Stanson as long as Ms. Constable continues to adhere to Public Health regulations and ensures that her ex-spouse Tom Stanson does so as well (while the COVID-19 protocols are in effect).

[48] The court makes the following orders on consent:

5. While the COVID-19 pandemic is in effect, the parties will adhere to the following:

a. Both parties shall ensure that, while the children are in their care and control, they do not have any physical contact with non-essential third parties.

b. Once a week, the mother may request from the father reasonable assurances that the terms set out in paragraph 4. above are being complied with. The mother’s enquiries shall be polite, brief and respectful.

c. Both parties shall ensure that no third parties, save and except any possible required essential services, shall attend in their homes or in their backyards at any time.

d. Both parties shall ensure they adhere to all Public Health regulations related to COVID-19 including (so long as they remain in effect) but not limited to wiping down surfaces and objects as required, only attending public places for essential services such as to purchase groceries, social distancing, etc. The parties shall also ensure the children adhere to same.

e. Once a week, the parties may request from the other reasonable assurances that the terms set out in paragraph 5d. above have been complied with. The enquiries shall be polite, brief and respectful. This requirement does not release the parties from their mutual obligation to share promptly any significant information affecting the health or general welfare of the children.

f. The mother shall ensure that the children are not exposed to vaping.

6. The applicant mother shall pay costs of this motion to the respondent father in the amount of $5,000, inclusive of taxes and disbursements.

Braid J. DATE: April 27, 2020