Court File and Parties
Date: 20200427 Superior Court of Justice – Ontario – Family Court
Re: B.B., Applicant And A.B., Respondent
Before: The Honourable Justice D.A. Jarvis
Counsel: Brian Ludmer, for the Applicant (Agent) Alla Koren, for the Respondent (Agent)
Heard: April 27, 2020 – Teleconference.
Ruling on Motion
[1] On April 8, 2020 I granted an Order brought by the applicant (“the father”) for leave to bring an urgent motion to enforce a final Order dealing with child access and on April 20, 2020 I denied the father’s request to bring a further, more detailed and expansive motion dealing with access. Reasons were given for both rulings.
[2] The motion proceeded on April 22, 2020. The parties audited the proceeding. They confirmed that as of April 8, 2020 the child was seeing her father pursuant to the Order. I accepted as sworn the father’s affidavit dated April 17, 2020 with attached exhibits.
Background
[3] On April 7, 2020 the father brought an urgent motion to enforce the access terms of a final Order that I made on January 16, 2019, with the parties’ consent. Pursuant to that Order the parties agreed that, among other things, the mother would have sole custody of the parties’ five-year old daughter (“IB”) and that the child would have access (the parties used “reside”) with her father according to a schedule. As befits the high conflict nature of the case preceding the Order, its terms (forty-nine in total) were very detailed and spelled out what was expected of the parties.
[4] On March 4, 2020 the mother brought a motion to have the father found in contempt of eight alleged breaches of the Order, some of a continuing nature. The father is employed in a senior capacity in law enforcement. He insisted on an oral hearing and so a date was scheduled for mid-March but then had to be adjourned due to the closure of the courts and the current COVID-19 pandemic.
[5] On March 15, 2020 the father contacted the mother about March Break. The Order provided that the mother have the March Break week in 2020. That week started March 16, 2020. The father wanted to have the child with him for the following week because schools had been closed even though there was no specific provision for this in the Order.
Access
[6] On March 19, 2020 the mother alerted the father that their daughter (“IB”) had developed a high fever and cold symptoms. She had earlier that morning contacted the child’s pediatrician rather than venturing outside her residence. The doctor told her to monitor the child’s symptoms for a couple of days and to take her to a clinic if the presentation didn’t improve. The mother told the father that she and IB’s step-sister were in “quarantine” (this word and “self-isolation” seem to have been used interchangeably in subsequent communications). Later that day the father responded, prefacing his concern with “… lately [IB] gets sick in your care” and setting out nine questions dealing with the development of the child’s symptoms, her condition and care.
[7] On March 20, 2020 the mother advised the father of the child’s high fever, sore throat and cough. Shortly afterwards, she reported that she and IB’s half-sister (they resided together) had become ill too. The father contacted IB’s pediatrician and, based on that discussion, formed the view that the child had a cold only and that there should be no impediment to the child residing with him on March 25, 2020, the next date after March Break when IB was otherwise scheduled to be with him pursuant to the Order. The mother said that the child’s time with him would be suspended until April 6, 2020 after their period of self-isolation was over. She answered the father’s detailed questions on March 22, 2020.
[8] The father did not accept the mother’s assessment of the child’s presentation. It does not appear that he paid much, if any, regard to the mother’s report about the health of IB’s stepsister and the mother or that those were even relevant considerations. He demanded that IB be made available for her time with him, he contacted the pediatrician twice more, peppered the mother with a litany of emails (often lengthy) that alternated between expressing concern about IB and threats of a motion to enforce the Order (often on a daily or more frequent basis), began recording the parties’ conversations and re-engaged Mr. Ludmer who entered into communications with the mother. The mother expressed, not without some justification in my view, that she felt that she was being bullied and intimidated by the father.
[9] Very soon after the child had become ill and the issue about access with her father arose the mother had sent to him a Temporary Parenting Protocol (“TPP”) that had been drafted by Ms. Koren (she and Mr. Ludmer had been appearing as agents when the mother brought her March contempt motion). The TPP was unremarkable; it did not seek to deviate from the father’s access time but proposed a template for the parties to consider and follow during the current pandemic to ensure the child’s well-being and consistency of safety precautions between the parties’ respective households. The mother wanted some assurance that the parties were on the same page. The father ignored the TPP and focused on his rights under the Order.
[10] In argument the father asserted that the mother’s denial of access shifted as the discussions between the parties became more accusatory and hostile. These included complaints about inappropriate interference by the mother with the child’s video-calls with the father and his new family and the involvement of the father’s wife and his stepchildren in those calls. The father had much earlier assured the mother about the pandemic-safety precautions taken at his home, workplace and personally. In his April 20, 2020 motion for which no leave had been given and I dismissed as noted above the father had file three facta.
[11] In an April 6, 2020 email to Mr. Ludmer, the mother said that on April 5, 2020 Canada’s Chief Public Health Officer had said that essential service providers (of which the father is one) should self-isolate from even their in-home family members when off-duty. The mother said that “[c]ontinuing access defies logic and current recommendations from Canada’s authorities”. There is no evidence before me confirming this recommendation but, I suspect, it was the impetus for the father’s urgent motion brought the next day.
[12] The motion argued then was not about enforcing the Order any longer since access in accordance with it had re-started on April 8, 2020 but about costs incurred by the parties relating to the circumstances giving rise to it. The father has asked for $15,000: the mother has asked for $5,000. In my view, no costs should be awarded to either party. Despite the father’s suspicions about the mother’s lack of support of his parenting role in IB’s life, the fact is that it is she who is the parent with custody, not him, and on her rests the primary responsibility for IB’s well-being. Given the extraordinary circumstances that our society is facing right now, I cannot say that she acted unreasonably in deferring the child’s access with the father after IB’s sister and she became ill to the week of April 6, 2020. Even so, there were times when she could have provided more robust information to the father more quickly and she spoke unwisely (such as her statement to Mr. Ludmer, as noted above, about continuing access in the current pandemic). Equally, while the father had some cause to question the mother’s reasons for suspending access due to the litigation history between the parties and cannot be faulted for wanting more information, his relentless, and dismissive, challenge to the mother’s authority only amplified their dispute, corrosively eroded even further their ability to respectfully communicate and escalated their conflict leading, inexorably, to his motion.
[13] What the parties need is do is engage a third-party professional to work with them about how to far better communicate and to sensibly co-operate on issues relating to their daughter’s well-being. That is where they should have spent, and should in future be spending, their money. They should return to their use of Our Family Wizard as set out in paragraph 25 of the Order, the subscription for which has expired and should restrict their interactions to essential matters affecting the child.
[14] As the father’s motion is now moot, it is dismissed. No costs.
[15] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable forthwith without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.