Court File and Parties
KINGSTON COURT FILE NO.: 509/19 DATE: 20200427 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Marika Marie Scheulderman, Applicant AND: Curtis Jade Kingston, Respondent
BEFORE: The Honourable Madam Justice A. Trousdale
COUNSEL: Eve Theriault, Counsel for the Applicant Peter S. McCullough, Counsel for the Respondent
HEARD: Oral hearing by telephone conference due to Covid-19
Endorsement
[1] Covid-19 has resulted in regular Superior Court of Justice operations being suspended for a period of time 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. There has been subsequently an expansion of some services commencing April 6, 2020 in accordance with a further Notice to the Profession from the Chief Justice dated April 2, 2020 and Regional Notices all available on the Superior Court of Justice website.
[2] This matter came before me as the Triage Judge to determine whether or not the motion brought by the Applicant and the cross-motion brought by the Respondent are urgent and require a hearing.
[3] On April 9, 2020 I issued an endorsement requesting further information from the Applicant and also providing her an opportunity to respond to the cross-motion brought by the Respondent.
[4] On April 17, 2020 I issued a further endorsement that there were potentially urgent issues regarding the alleged withholding of the child and regarding the safety and well-being of the child, and that an oral hearing by teleconference would be held. I set the dates for documents to be served and filed.
[5] On April 24, 2020 I heard an oral hearing by teleconference on the Applicant’s motion and on the Respondent’s cross-motion.
[6] The Applicant mother seeks leave to bring an urgent motion for the return of the child whom I shall refer to as “K”, to the care of the mother immediately or at such time as the court determines in accordance with the consent temporary without prejudice order made at a Case Conference on November 26, 2014. Pursuant to that order, the father has the child for alternate weekends from Saturday at 12:00 p.m. until Monday at 12:00 p.m. and alternate Thursday overnights from 5:15 p.m. to Friday at 5:15 p.m.
[7] The Respondent father has brought a motion seeking leave to have his cross-motion heard on an urgent basis. He seeks that the child be placed in his temporary care and custody subject to electronic access by the mother. This is based on his concerns about the conduct of the mother regarding alleged lack of observance of Covid-19 protocol and the mother’s alleged inability to provide a proper home for the child.
[8] I have reviewed each party’s motion for leave to proceed on urgency as well as each party’s substantive motion, and the affidavit of the mother affirmed April 6, 2020, affidavit of the mother affirmed April 16, 2020, affidavit of Elizabeth Ambury affirmed April 22, 2020, two affidavits of the father each affirmed April 8, 2020, affidavit of the father affirmed April 20, 2020, and the affidavit of Allison Thompson affirmed April 8, 2020. I also heard oral submissions on behalf of each party.
Positions of the Parties
[9] The mother seeks the immediate return of the child to her care as there is the existing temporary order of November 26, 2019. She acknowledges that she had agreed for the wellbeing of K and of herself that K would temporarily reside with the father for a period of time while she dealt with some cold symptoms in case they were Covid-19. She argues that she did generally comply with self-isolation although acknowledges that it was not perfect. She has tested negative for Covid-19 on April 13, 2020. She has removed other persons from her home and she states it will be only herself and the child K residing in the home with her older child visiting on alternate weekends. However the father continues to withhold the child K from her contrary to the existing order.
[10] The mother argues that the father’s compliance with Covid-19 protocols has not been perfect either. He has done some of the same things about which he criticizes her but he fails to acknowledge that, or alternatively minimizes his actions.
[11] The mother argues the father’s motion is not urgent. She disputes the allegations of the father regarding her hygiene, and her care of the children and her home. She argues that the father is making these allegations in order to obtain a change in the child’s residence prior to trial and that this is about power and control. The mother alleges that many of the father’s allegations:
(a) pre-date the separation and the existing temporary order, or
(b) are based on allegations of which the father has no personal knowledge and regarding which he does not identify the source, or
(c) are based on some pictures the father took of the mother’s townhome without her knowledge or consent during the period she was moving in and getting settled in her townhouse with assistance from the father.
[12] The father seeks a temporary order that he have temporary custody of the child K subject to electronic contact with the mother based on:
(a) the mother’s conduct with respect to non-compliance with Covid-19 protocols including social distancing; and
(b) serious concerns regarding the mother’s lack of hygiene, the mother’s poor care and maintenance of her home, the mother’s excessive use of alcohol, her poor financial management, the excessive number of non-relatives in her home, extensive clutter in her home, and some lack of safeguards in the home for K’s safety.
[13] The father argues that he is following recommended Covid-19 protocols in his home and that as a result the child would be safe in his home. He submits that the mother has not followed Covid-19 protocols by allowing a number of unrelated people to stay in her home and by not practising social distancing. As a result he argues that the mother’s contact with the child should only be by electronic contact.
[14] He claims that when the parties resided together he did much of the work around the home including cleaning and cooking even though he was working and the mother was not working. He submits that when the mother was in the women’s shelter, she did not need to do much child care or house maintenance. He argues that now that the mother has her own accommodation, the mother’s deficits in that regard have again re-surfaced as they existed during the time the parties resided together and also when they were living separate and apart in their home.
[15] The father argues the mother’s motion is not urgent. He submits his retention of the child was justified because of his serious concerns for the wellbeing of the child K in the care of the mother particularly when the Covid-19 crisis concerns collided with a resumption of the pattern of the mother having difficulties maintaining a proper residence and providing care for the child.
Background
[16] The Applicant and the Respondent are the parents of a daughter, K who is 3 years old, born November 3, 2016.
[17] The parties were in a relationship from 2014 to 2019. They resided together from 2016 to May 2019.
[18] They began living separate and apart in the same home until October 31, 2019 when the mother left the home and went to a women’s shelter.
[19] The mother commenced an Application for custody, parenting time and child support on November 7, 2019.
[20] The father in his Answer claimed custody of the child. On November 13, 2019, the father brought a motion on the basis of urgency prior to a Case Conference for temporary custody and other relief. It was dismissed as not urgent. However, there was a temporary without prejudice order made partially on consent including that the father would have the child with him every Saturday from 9:00 a.m. to 5:00 p.m. without prejudice to the father’s request for much more access, and setting a Case Conference date for November 26, 2014.
[21] As previously stated, a temporary without prejudice order was made on consent on November 26, 2019 at the Case Conference.
[22] The mother also has an older child with a different father who is 8 years old and with whom she has parenting time by way of a Final Order made in February 2018. Pursuant to that Final Order, the father of that child has custody of the child and the mother has parenting time every second weekend as well as Thursday overnight each week from after school to the next morning at school. However, the mother is not exercising the midweek overnight now as she does not have a vehicle to drive the child to school north of the city.
[23] The parties had a Settlement Conference in February 2020 and this matter was set for a Trial Scheduling Endorsement Conference for April 2020, which due to Covid-19 has been adjourned to June, 2020 to set a new date. Custody and parenting time regarding K remain disputed issues.
[24] The mother and K resided in the women’s shelter from October 31, 2019 to approximately March 1, 2020 when she obtained a three bedroom subsidized townhouse.
[25] The father alleges that the mother has since the Case Conference offered him at times more parenting time with K than is provided for in the temporary order which sometimes approached or reached 50% of the time.
[26] The mother acknowledges that she has sometimes provided the father with additional parenting time with K than provided for in the order, but disputes that it was ever up to 50% of the time.
Issues
(1) Are either of these motions “urgent” within the meaning of the Chief Justice’s Notice dated March 15, 2020?
(2) Should the child K be returned or not to the mother’s care subject to the parenting time for the father set out in the temporary without prejudice order made on November 26, 2020 or should there be a temporary order that the father have interim custody/residence of the child K?
(3) If the father should have temporary custody, should the mother’s visitation be restricted to electronic visitation only?
(4) If not, what should the mother’s visitation be?
Analysis
[27] On March 21, 2020, the mother advised the father that she was experiencing a runny nose, mild cough and a low-grade fever. The mother apparently contacted Kingston Public Health, either on her own or at the suggestion of the father, and was allegedly advised that due to the fact that she had advised them that she had a weakened immune system, she should voluntarily self-isolate, and that it would be best to not have the children go back and forth at that time to prevent any risk to the mother.
[28] The mother did not state in her affidavit what amount of time Kingston Public Health advised her to self-isolate, but the parties appear to have agreed that the father would keep the child with him for a period of time. The father alleges that the mother agreed to a period of 14 days, while the mother says she agreed that the father would keep K with him until it was safe for K to return to the mother’s home. The other parent of the mother’s older child also agreed to keep that older child with him for 14 days.
[29] The mother states she remained alone in her own home from March 22 to March 25, 2020. She then started to feel better. On March 26, 2020, she was unexpectedly visited by three friends. She told them that it would be best that they stayed with her during her self-isolation to avoid the risk of spreading any illness. The three friends did stay with her. Two of the friends left the home on April 3, 2020 and the mother asked them not to return. It appears that one male friend continued to stay at the mother’s home and it appears that he has now become a boyfriend. The mother advises that her boyfriend is not residing with her at this time. He is residing with his mother.
[30] The mother and her friends living with her at the time went for walks but she stated that they practiced social isolation, although she acknowledged that when they ran into another friend on the street one day, a quick picture was taken of them together. The mother also went on one trip to the grocery store on April 1, 2020 with her boyfriend taking the bus there with gloves on, and practising social distancing, and returning home by taxi.
[31] In the meantime, the father became aware that the mother had friends staying at her home during the time she was in self-isolation. He complained to the mother and he allegedly contacted Kingston Public Health and alleges he was told that the mother would have to re-start her 14 days of self-isolation. The father told the mother the 14 days of re-started self-isolation would end on April 11, 2020. Initially the mother agreed to re-start her self-isolation but then changed her mind. The mother alleges that she contacted Kingston Public Health and was told she didn’t need to re-start her self-isolation.
[32] The mother demanded through a letter dated April 3. 2020 from her counsel to the father’s counsel that the child be returned by April 4, 2020. There was no response from the father’s counsel.
[33] On April 3, 2020, the father seemed to indicate in his written communication to the mother that he would be returning the child to the mother on Sunday April 5. However, on Sunday April 5, 2020 the father changed his mind and the child was not returned.
[34] The mother brought this motion on April 7, 2020.
[35] The father responded with his counter motion on April 8, 2020.
[36] The other parent of the older child re-started the mother’s parenting time with the older child after the 14 days were up.
[37] In my endorsement as the Triage Judge on April 9, 2020, I indicated that due to conflicting advice that each was stating they had each allegedly received over the phone from Public Health as to what was required for the mother to do to safely have the child back in her care, I required further information which I specified in that endorsement.
[38] The mother was unable to get anything in writing from Public Health as to what was required, but Public Health did refer the mother for testing. The mother’s test took place on April 13, 2020 and came back on April 15, 2020 as negative for Covid-19.
[39] The mother has not seen the child K in person since March 21, 2020 which is five weeks ago. The mother has tried to have the child returned to her care but to date the father has refused to do so. He has provided electronic time between K and the mother but he has not permitted any in-person time. The child’s older half-sister has also not seen K in 5 weeks although they may have had some electronic visits.
[40] I find that the mother’s motion is urgent as there is an outstanding temporary order which specifies the parenting time for the father, but the father is withholding the child from the mother contrary to the existing order.
[41] I find the father’s motion also has potentially urgent aspects about it, primarily in relation to the Covid-19 issues.
[42] I find that the other issues raised by the father regarding the mother’s lack of house-keeping abilities and other matters are not urgent. There is no evidence before me that the women’s shelter where the mother resided for 4 months had any concerns nor that the shelter reported anything in that regard to child protection authorities.
[43] I note that there is no evidence that the father has ever called child protection authorities regarding any of these alleged issues, many of which predated this motion. The father argues that like so many other things during Covid-19, child protection authorities are closed. However, child protection authorities are still available during Covid-19 to provide child protective services involving the safety of any child.
[44] The mother states that the photographs of her townhouse that the father took without her knowledge or consent were taken just as she was moving into the home and things were unsettled due to moving. In his affidavit dated April 7, 2020, the father stated that the pictures were taken between March 6 to March 20. In his subsequent affidavit of April 20, 2020 the father states the photos were from around March 20, and not from when the mother first moved in as alleged by her. From reviewing the pictures and the dates on them, it appears that the pictures may have been taken on March 6, 2020, March 12, 2020, March 13, 2020, March 16, 2020 and March 20, 2020.
[45] In the pictures submitted, there was some clutter, and piles of clothes and toys in some of the pictures, but in my view not to the extent that would justify removing the child from the home on an urgent basis, particularly where the mother alleges the pictures were taken at the time she had just moved into the townhouse.
[46] In the pictures subsequently provided by the mother, the townhouse did look somewhat better. The mother should ensure that the child does not have access to any potentially unsafe items.
[47] The father and his girlfriend make other allegations in their affidavits but some of those allegations were made not based on personal knowledge, but rather on information from acquaintances of the father or other people that his girlfriend says she knows, with no identification of the names of those people or that the father or his girlfriend believe that information to be true. This does not comply with Rule 14(19) of the Family Law Rules.
[48] The father alleges that the mother has trouble managing money. The mother states that the issue of child support has not been dealt with and the mother is not yet receiving any child support from the father.
[49] I find the allegations of the father regarding the alleged inability of the mother to maintain a proper home for K and regarding other issues concerning the mother are on the evidence before me not urgent at this time. The father may or may not have some valid concerns for the long term regarding the issues he has raised, which I assume he will likely be bringing to the attention of the court at the upcoming trial of this matter. Those issues would be better dealt with at the trial where both parties and other witnesses can give evidence and be subject to cross-examination.
Covid-19 Issues
[50] I find that the mother exercised good judgment in placing K with the father when she felt she was getting ill on March 21, 2020, and in not having visits with her older daughter during the next 14 days. Although the mother hedged her agreement regarding 14 days, I find that the mother and the father impliedly agreed that the period K would stay with the father would be for 14 days. This coincided with the 14 days the mother did not see the older child.
[51] The father complains that the mother introduced three unrelated persons into her home during the time she was supposed to self-isolate. K and her older half-sister were not residing in the home at that time. I find that the mother’s judgment was not good in that instance. She could have and should have turned her friends away. Instead she had them self-isolate with her for a period of time. Two of those persons left at her request on April 3, 2020. The male person who is apparently now her boyfriend stayed a little longer. The mother advises that her boyfriend visits at her home but is not living there now. He lives with his mother.
[52] On the other hand, I find the father behaved similarly in his household while K was residing with him when he states he was self-isolating.
[53] On March 25, 2020, the father introduced into his home, his new girlfriend who up to that time had been residing in the women’s shelter and had known the mother there for several months. The evidence is that the father’s new girlfriend has some mental health issues and has a seizure disorder. Her two very young children reside with their father but visit the mother so they are also at times at the father’s home. Due to a recent court order the father’s girlfriend now has no overnight visits. Further, there is a provision the girlfriend must have someone else there with her when she has her children with her in the event she has a seizure.
[54] Around the same time the father also permitted another unrelated man to move into his home who wanted to self-isolate. The father advises that man has just in the last day or so moved out to care for his mother. The father already had another unrelated woman living in his home for some period of time, whom he says looks after K when he is at work.
[55] The father delivers newspapers which is an essential service and he is therefore going out to work. He works Tuesday night from 6:00 p.m. to 8:00 a.m., Wednesday afternoon to 11:00 p.m. and Thursday morning from 10:00 a.m. to 4:00 p.m. He advises that he takes appropriate precautions such as wearing medical gloves and a mask provided to him.
[56] Even after the father became aware that the mother had tested negative for Covid-19 he refused to return K to the mother’s care or even allow the mother to see K at all in person.
[57] Although each party’s behaviour in the initial Covid-19 stages was not perfect, I find that the parties were generally trying to follow Covid-19 protocol. Both parties now have a better understanding of the importance of protecting themselves and the children from Covid-19 and the difficulties that can arise if they do not do their best to follow recommended Public Health Covid-19 protocols during this pandemic. If either of the parties fails to follow Covid-19 protocols, the parties will likely find themselves back before this court.
[58] At the end of the hearing on April 24, 2020, I made a temporary without prejudice order that the father deliver the child K to the mother’s home on Friday April 24, 2020 at 5:15 p.m. where the child would remain in the care of the mother pending the release of this endorsement. In the same order I also ordered both parties to comply with Covid-19 protocols.
[59] There is an existing temporary court order made November 26, 2019 which should be followed. The father should have the child with him for the parenting time set out in that order. Both parties acknowledge that the father has at times since that order was made had additional parenting time with the child, although they disagree as to what was the amount of additional time. If the parties are able to agree on the father having some additional parenting time with the child, they may make arrangements between themselves regarding that.
Order
[60] There shall be a temporary Order as follows:
(1) The existing temporary without prejudice order made November 26, 2019 shall continue.
(2) Both parties shall abide by Public Health Covid-19 protocols including social distancing, proper hand hygiene and other recommended precautions.
(3) Each party shall on an ongoing basis keep the other party fully advised immediately of any person residing in their respective household who is having Covid-19 issues including testing positive for Covid-19, having symptoms of Covid-19, or being quarantined or advised to self-isolate because of coming into contact with someone who has or is suspected of having Covid-19, so that the parties can discuss what, if any adjustments need to be made to the care of the child or to the parenting time in those circumstances.
(4) The motion of the Respondent is dismissed without prejudice to his renewing his motion if necessary.
(5) This order shall be without prejudice to either party bringing this matter back to this court if urgent Covid-19 issues arise.
(6) If the parties are unable to agree on the issue of costs, the Applicant may serve and file submissions as to costs of no more than 3 typewritten pages together with a Bill of Costs and a copy of any Offers to Settle by May 8, 2020. The Respondent may serve and file submissions as to costs of no more than 3 typewritten pages together with a Bill of costs and a copy of any Offers to Settle by May 22, 2020. The Applicant may serve and file a brief reply of no more than one typewritten page by May 29, 2020. The filings with the court shall be made at KingstonFamilyCourt@ontario.ca . If neither party files any costs submissions within the aforesaid timelines, there shall be deemed to be no costs.
(7) Once regular court operations have resumed, the parties shall each file all the documents served and filed for these two motions in the continuing record for this file at the court office.
(8) This order takes effect immediately and is signed electronically. This order is enforceable without the present need for a signed and entered formal order.
Justice A. Trousdale Date: April 27, 2020
Released: April 27, 2020