Court File and Parties

COURT FILE NO.: [none assigned] DATE: 20200427 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MICHEL LAURENT MOLGAT SEREACKI Applicant – and – KATIA JAVIERA LEKANDA BERDICHEVSKY Respondent

Counsel: Jessica Braude & Carina Chan, for the Applicant Manraj Grewal, for the Respondent

HEARD: April 23, 2020

Endorsement

Faieta J.

[1] The Respondent mother has refused to allow her children be in physical contact with the Applicant father over the last five weeks on the basis that she has a compromised immune system and does not trust the Applicant father to protect her and her children from contracting COVID-19. The Applicant father brings this motion for an order to enforce the equal, shared access schedule set out in the Separation Agreement, or alternatively that an order be granted during the COVID-19 pandemic for access on a week on, week off basis.

[2] For the reasons that follow, I order that the children be afforded parenting time with the Applicant on the terms described below.

Background

[3] The parties are the parents of two children, a ten-year-old daughter, Tassia, and a 7-year-old son, Paskal. The parties were married in 2007. They have been separated since July, 2016 and were divorced on December 19, 2019. The Applicant is a provincial civil servant and the Respondent is a teacher. The Applicant’s partner, Kathleen O’Reilly, has resided with the Applicant since January, 2020.

[4] Under the terms of a Separation Agreement, dated May 2, 2017, the parties have equally shared parenting time using two weeks blocks. In the first week, there is a 2-2-3 arrangement in favour of one parent, and in the second week there is a 2-2-3 arrangement in favour of the other parent. When a holiday falls on a Monday, the parent with the children on the proceeding weekend continues to have the children until Monday at 4 pm. It also provides that the parties will equally divide March break each year subject to any agreement between them otherwise.

[5] The Respondent mother states that she is the children’s primary parent because she has “been in charge” of the children’s health and custodial decisions. The Applicant father denies this assertion.

Recent Events

[6] On March 12, 2020, the Government of Ontario announced that all publicly funded schools would be closed for two weeks following March Break due to concerns about COVID-19. As a result, schools were closed for the three-week period from March 14, to April 5, 2020.

[7] On March 13, 2020, the City of Toronto’s Medical Officer of Health, Dr. Eileen de Villa, announced that Ontario's Chief Medical Officer of Health had recommended the immediate suspension of all large events and public gatherings of over 250 people however that did not include the use of public transit. Dr. de Villa noted that the Chief Medical Officer of Health also recommended the deferral of nonessential travel outside of Canada. In addition to those new provincial guidelines, Dr. de Villa recommended the temporary closure, until April 5, of all licensed childcare centres, the cancellation of March Break camps, and that anyone who had travelled outside of Canada should self-isolate and avoid contact with others for 14 days.

[8] In her affidavit, the Respondent mother states that “the City of Toronto went into lockdown to protect the public from mass spreading of COVID-19” on March 13, 2020. No evidence was provided to support this statement. The Respondent’s assertion is a gross exaggeration of Dr. de Villa’s announcement.

[9] The Applicant father took the children on weekend ski trip at a resort outside Barrie, Ontario from Friday March 13, 2020 and until Monday, March, 16, 2020. His parents were also present on the trip. Applicant states that he decided to go because they did not have to travel by plane and could easily return home at any time and their planned activities would be outdoors. The Applicant states that the Respondent was fully aware of his plans for the ski trip. The Respondent’s assertion that she pleaded with the Applicant not to go on this trip is specifically denied by the Applicant.

[10] On the evening of Saturday, March 14, 2020, the Respondent sent an email to the Applicant stating that she wished to keep the children in her care as a result of the COVID-19 outbreak. Her mail states:

It is necessary for us to discuss the protocol for the kids and social distancing for Covid protocol. I am concerned about ur plans and ur GFs plans to use public transportation and the exposure to your own parents who seem to be rather careless with regard to health concerns in general (ur mother reuses Kleenex and sticks it up her sleeve).

As you know I am immunocompromised right now and cannot get this on top of whatever it is I am still fighting. My parents cannot b in contact with the kids is they r not practicing social distancing … Tass told me today she doesn’t even know what the term means which is to say that you have not informed them at all about this very necessary measure and why it is crucial for our family .

Furthermore, you r at a place where in the pool, the lodge etc u r exposed to well over the recommended limit. The director of the college of physicians and surgeons said today he recommends everyone stay home and practice social distancing, u have chosen to go ahead with ur vacation plan as if the pandemic is not happening nor could it affect any of us. Ur lack of consciousness is astounding. How do u not realize what this might mean for us?

We need to discuss how to proceed. I will cancel my plans for next weekend as I will not expose them further. I think they should b with me in order to ensure social distancing as you seem to not care that it could literally take out my side of the family. … [Emphasis added]

[11] The Applicant responded on the afternoon of March 15, 2020 by email. He stated:

… Thank you for the link, the information is consistent with what we’ve been practising as of Friday. As information has been evolving, there was no indication as of when we left Friday, or yesterday that our plans should have cancelled based on government directives. Social distancing and taking precautions does not mean the same thing as self-isolation or quarantine, which is clear in the article, as well as others we’ve been consulting.

We have been mostly outdoors, due to snow conditions and travels there are still people skiing but less so, and we are ensuring to take chairlifts just ourselves. There is a very low risk outdoors, and we’ve been able to keep to ourselves in the lodge. Further, when we haven’t been alone in the pool, there has always been way less than recommended numbers of people in the pool. We’ve also left when it got busy, which is consistent with guidelines at this stage. We will continue to keep up date on recommendations as things are evolving daily.

My partner and I will both most likely be working from home, and Kate’s office has already started protocols for this. The public service is also issuing directives on this, and I will be choosing to work from home as I indicated to you when we spoke on Thursday, and Have already started the process for this.

I plan on following protocols and guidelines that is recommended (as it changes of course) for the next three weeks or more, as the safety of those around me is most important. We’ve been reading those of Health Canada as well as others. This is as much for you as you’ve kept me up to date regarding your health situation the past few weeks. We have to work together on this and I think that keeping the usual schedule will help the kids, and most importantly help ensure they are kept busy and stimulated during the next three weeks . We are not planning on doing any group or activities in large crowds, so I’m not sure why you want to keep them with you, especially as you are still unwell. My plans with htm will be low key and any outdoors activities will be just us or with a few other people and would be outside for the most part.

We will need to continue to talk about this in the coming days and weeks as things develop. I can try to call tonight after the kids are asleep if you want to discuss further. [Emphasis added]

[12] Dr. de Villa’s next announcement was on March 16, 2020. She recommended social distancing. Her announcement states:

Today I recommend: --Bars and restaurants to stop in-person service and move exclusively to takeout and delivery service as soon as possible and no later than midnight tonight. --In order to limit virus spread, I am also strongly recommending all nightclubs, movie theatres, and concert venues close as soon as possible. --Businesses who choose to defy my recommendations may be subject to orders under the Health Protection and Promotion Act.

Also, I am recommending: --If you can stay home, do. --If you are a business or employer, help your staff to stay home. --Limit group gatherings. --If you need to seek medical attention, call ahead. --If you are a healthcare worker and are sick, stay home. --If you have travelled, stay home for 14 days from the day you arrived home.

If neighbours or family members need supplies, then help them, but practice social distancing. If you need to take public transit to access health or necessary goods or services, practice social distancing. …

I am asking for everyone in our city to take these recommendations seriously and make every possible effort to practice social distancing.

[13] On Tuesday, March 17, 2020 the Government of Ontario ordered, for the purpose of taking measures to help contain the spread of COVID-19, the closure of certain establishment such as public libraries, private schools, child care centres, bars, restaurants and theatres. The Government of Ontario also prohibited all public events of over fifty people.

[14] On March 18, 2020, Dr. de Villa stated:

Social distancing means: --Avoiding close contact with others --Keeping 6 feet apart to prevent virus spread --Staying home and only going out for food, or medicine --Reducing contact with others --Working from home --Helping your employees stay home --Grocery shopping online or having someone do this for you

Social distancing is a new concept for us, so I want to be clear: --Having friends over for dinner or coffee is not social distancing. --Arranging playdates for your kids is also not social distancing. --Visiting friends and family in long-term care homes, or hospital is not social distancing. --Stopping at a grocery store to stock up after travel, including travel to the United States, is not social distancing.

This is a challenging time. Your federal, provincial and local governments are all taking extreme action. Extreme action is now also required from you.

We all need to take these personal responsibilities seriously. We need to practice social distancing seriously.

I'm asking everyone once again to make every effort and take every opportunity to practice social distancing. Stay home, stay safe and take care of each other.

[15] On Wednesday, March 18, 2020, the Respondent told the Applicant that he had exposed the children to COVID-19 in “reckless and careless and ignorant ways”. Her email states:

It has come to my attention that Tassia is in fact presenting symptoms of Covid, or a cold which could be Covid in a child. I know that you do not consider this to be a big deal, as you stated, and for the children it is not a big deal as they will be just fine – it is the ppl they can and will and have infected that is the problem, ppl like myself.

In addition to your not taking their temperature until today, when Tassia has presented with 37.9 in the ear. You also said to her that the oral temperature is more valid, when she does not and has not ever taken an oral thermometer therefore has no idea how to do so properly.

You are now on the phone and I can hear you arguing with her about fevers and what it is. Instead of paying attention to her symptoms and knowing that BOTH our children have the same immune response I and My mom have which is an elevated temperature as soon as the body is fighting something. In us this resents at around 37.3. My brother becomes delusional at 38. Pls stop trying to convince my children that running a temperature is normal. It is not, and you should be paying attention to her symptoms and how she feels. You just told her that medication makes you more comfortable but is not a cure. You just said “mami has been reading too many disaster things and what they know about Advil is not conclusive” … Your ignorance knows no bounds. It is insane to me that you do not understand any of this – alleviating her symptoms and keeping her comfortable is good not bad.

In addition to not KNOWING THAT ADVIL has been ruled out as treatment by the WHO and Tass had to tell you this and you still did not believe her - you have chosen not to give her anything to make her more comfortable. You are arguing with her about advil and how you wont be giving her anything until she has finished the bottle of grape advil.

Paskal was apparently sent away with your parents. The kids are not supposed to leave the home – at all under any circumstances. I am warning you right now that you do not have my permission to send Paskal or Tassia with anyone under these circumstances with your parents or anyone else. I HAVE THE RIGHT OF FIRST REFUSAL and they will come to me before they continue to be exposed in the reckless and careless and ignorant ways you have done thus far. Ur parents have no business taking our kids during this period, and they have no business having dinner parties with you etc. This is NOT A VACATION. This is a pandemic. Get with it. Understand the severity of what is happening. You may be healthy, ur parents may appear healthy ur GF might be as well. This is not the point – it is not about u privileged folk it is about the rest of us that do not have that luxury.

SO, you will not take my kids anywhere. Your parents no longer have permission from me to have the kids. I am putting this in writing and I have notified Health Canada about my concerns and that I am awaiting results and in quarantine and terrified about the exposure you have given my kids during this exceptional period.

If you choose to defy this as well as everything else I promise you it will absolutely be your undoing. There is no coming back from this one. Your behaviour is seriously beyond negligent at this point knowing the mother of your children is immunocompromised, sick for 6 weeks, and you behave with them as if it is business as usual. Surreal.

I won’t have my results until Friday. However if you are incapable of staying home ALONE with our children, I want them returned to me and they can be in isolation with me for the remainder of the time or as needed. [Underlining added]

[16] The Applicant denies that Tassia had a temperature as described in the above email. He states that Tassia had not been feeling well. She did not have a fever but temperature was 37.6 degrees which was higher than usual. She recovered almost immediately and to the Applicant’s knowledge the children have been healthy since that time.

[17] On Thursday, March 19, 2020 the Respondent notified the Applicant that she had tested negative for COVID-19. As a result, the Applicant states that he agreed to drop the children off at the Respondent’s home on Friday, March 20, 2020 in accordance with the Separation Agreement.

[18] Despite all of the concerns that the Respondent expressed regarding the Applicant’s conduct given her medical condition, the Respondent welcomed the children back to her home on March 20, 2020.

[19] A few hours after he dropped the children off, the Respondent notified the Applicant that she would keep the children until Monday, March 30, 2020. She stated:

So u r aware, I spoke with my medical professionals as well as Dr Greenberg and informed them about ur going away and sending paskal with ur parents and then having dinner with them. There is unanimous agreement on how inappropriate this is.

I am in quarantine and will b until next Monday. The kids should remain with me until at least then.

Public health said that if I do not trust u and ur gf are in fact self isolating and only social distancing which poses serious risk to me as I am immunocompromised at the moment that u should not have the kids with u.

I suppose we will have to reevaluate as things progress even when at no given time in the past week did u respect or listen to anything I had to say and further made the issue worse by getting others ur parents and gf involved with opinions they r not entitled to.

Telling the kids I am crazy, that the world doesn’t revolve around me, that ita not that big of a deal and I’m exaggerating, or that I am playing a dangerous game is extremely counter productive and parental alienation is not ok.

Furthermore, the kids have indicated that ur GF repeated a racist mockery of the Corona virus … . As their father u should put a stop to that at a minimum but it should also make u question this childish person and her core values…, but they align with ur own racist bigoted aways ap u will never see fault in it either.

All the best. Pls keep me informed as to how u can ensure my safety and that of my elderly parents going forward as I assume u would like to see the kids. [Emphasis added]

[20] Within a few days, the children pleaded to return to the Applicant which, as he states, is understandable given that he regularly sees them every few days.

[21] On March 20, 2020, Dr. de Villa issued a further announcement regarding social distancing:

… I would also like to remind everyone of what we mean by social distancing: --Working from home, wherever possible --Helping your employees stay home, or work from home --Keeping 6 feet apart to prevent virus spread --staying home and only going out for food, or medicine, or other important household needs --Ordering food through take-out or delivery --Purchasing your goods online --Participating in your community or faith-based organization, virtually, or over the phone. …

I am encouraging everyone who can, to stay home. Essential workers and those who support them need to come to work and maintain social distancing as much as possible in order for our city to work. …

In closing, I'm asking everyone again to make every effort and take every opportunity to practice social distancing.

So please, stay home, stay safe and take care of each other.

[22] On March 23, 2020 the Respondent mother sent the following email which initially recognizes, albeit for negative reasons, Tassia’s desire to see her father and concludes that both children do not wish to live with their father:

So you are aware, I have to put it in writing that Tassia after she ended her convo with me, negan her usual pleas about why she really wants to be at your place.

She has agreed to co-sign this email so that you understand that this is not me making this up. I want you to finally understand that she only wants to be at your place because, in her words “she wants to make a better relationship with you”. She said quite blatantly that as she sees it, now that you are at home working that you will take the time to spend with her and forge a relationship which is what she has always wanted. She said “maybe I wont second to Kate now, maybe he will actually pay attention to me and do things with me”.

I keep telling her that forging a good relationship with you should not be her burden to bear, you are the parent, she and paskal should be your priorities, in real time, every single day. The fact that she feels it EVERY SINGLE DAY that she is not, and now, in a pandemic, when they are quarantined with me, she feels is the most opportune time to have you trapped so u MUST pay attention and love her the way she deserves is remarkably upsetting and demonstrates the true lack of parenting and LOVING that you are doing and have managed to do since introducing your GF – their roommate – to them.

I know that you sat there last night gloating about how she said she wanted to be with you . You would, as it would definitely work in your favour, even if it has been only this once where your child has asked to be with you – ever. But, it needed to be said and put in writing that the sentiment for this request is based in something very sad, very sinister and which should make you and anyone else who might happen to read this reflect on what Tassia experiences when she is with you. Nor she nor Paskal have any desire to live with your and ur GF, but you fail to consider this. Unfortunate, blind and very very selfish . [Emphasis added]

[23] Although the Respondent states that the above email was co-signed by Tassia, there is nothing in the email nor any subsequent document to indicate that Tassia adopted the statements made by the Respondent. In any event, the email is entirely inappropriate and shows that the Respondent is attempting to minimize the Applicant’s relationship with Tassia, if not undermine it.

[24] On March 29, 2020 the Applicant sent the following email to address the Respondent’s concerns regarding exposure to COVID-19:

… We are aware of your health concerns regarding your lungs, and what you have been dealing with since February. The situation we are all dealing with now is unprecedented, and may last a while. As it stands at the moment, where there are no specific government ordered directives that supersede it (such as in the case of people returning from other countries who as of this week must quarantine themselves) our custody arrangement still stands and you cannot unilaterally choose it at this point. You also requested to take the kids half-way through your period of quarantine which to my understanding defeated the purpose of self-isolating yourself if there was in fact a risk to yourself or the kids.

At this stage, given our custody schedule, we can choose to have it continue as per usual, or we can choose to both agree to a modified one given the particular circumstances and in order to better protect you . Kate and I are social distancing per the protocol, we are not socializing in person with anyone outside our home, and this will apply to the kids when they are with me. When were are outside, we keep our distance from others per the recommendations. We will not be seeing my parents during this time, nor any other people outside the immediate household, and continue to keep up to date daily on heath and safety practices the public health authorities are recommending as things are evolving daily. We are not the only family dealing with this at the moment. I understand that this is the same approach being followed in your home, where the kids are outside and when they interact with the neighbours at a safe distance.

My suggestion would be to either continue to use our regular rotation or I would suggest temporarily going to a weekly rotation if you feel this would be better for your health. Given the kids want to know what their schedule will be, either of these options would allow for them to continue having some certainty and consistency in their schedules. [Emphasis added]

Please let me know which option you feel is the best to move forward with for the time being.

[25] Two days later, on March 31, 2020 the Respondent replied that the children would remain with her for the “foreseeable future” on the instruction of her doctors. Her email states:

As you are aware and I have made clear, I am immunocompromised at this time and have been told by my medical professionals that I am in self isolation until this pandemic subsides. What does this mean for us as co parents and our kids more importantly? As it stands, I cannot have the kids going to and from one house to the other as it poses a risk of exposure tome and my doctors have said if the kids leave they cannot return to me at present as I am in no condition to fight off Covid 19 should I contract it. They have advised that the children remain with me for the foreseeable future.

Having said this, and realizing the impact that this has had an will continue to have on them, I propose that we establish a daily routine in which you zoom with them daily at a set time. Maya has also established a drive by system by which Munzer drives up in the car and talks from the car with the kids as well as zooms or facetimes with them as much as they feel is necessary. I feel this would be a good way forward.

For this to happen we both need to be on the same page and sending the same message to the kids. This is not about punishing the other parent, nor holding them hostage, nor taking away what is owed to them which is equal time with both of us, it is doing what is medically necessary at this given moment so that I can have a fighting chance at contracting this which is absolutely rampant in this city at present .

I would urge you to please get on board with this and perhaps we can have family zoom time where we can talk to the kids about this situation together so that they know that this is the way forward for now and it is what is best for them given the circumstances.

School will not be returning until May at the earliest . I am off work now and am also more able to provide routine an structure in my home for them to continue doing what they need to do in terms of schooling as it is my profession and I am in a unique position to offer both dedicated time and professional guidance as an educator, most especially to Paskal who needs it most at this moment in time given the strides he has made with me in Literacy and Numeracy. You are unfortunately still working full time from home which does not allow you said dedicated time with them. [Emphasis added]

[26] Dr. Trudy Chemin, a family doctor with the Taddle Creek Family Health Team, provided the following letter dated March 31, 2020, that was obliquely referenced by the Respondent in the above email:

To whom it may concern:

Katia has had an upper respiratory infection since November. She was treated in January for pneumonia and has continual cough and shortness of breath since. She has several chest xrays and has been seen by internal medicine twice. A respiratory consult is pending. Our office has been following her closely. She has been on numerous medications for this and tested negative for covid 19. She has been advised to remain in social isolation until 2 weeks after her symptoms have cleared. At this time her children are in her care . She has been advised to keep them with her because going back and forth between her and her ex husband will put her at risk of being exposed to a new infection. She is unable to tolerate this in her present condition. She would not be able to see her children again if they were to leave until this pandemic has settled. Being separated from her children would adversely affect her mental health. She is currently off work and is able to care for the children full time despite her current condition. [Emphasis added]

[27] The Applicant rejected the Respondent’s proposal. The Applicant states that he has had daily calls with the children since 2016. He has initiated video calls with the children. He states that Tassia has told him on numerous occasions that she would get into his car and leave with him right away should he come by the Respondent’s home.

[28] On April 2, 2020, the Applicant attempted, through his lawyer, to arrange for mediation to resolve the parties’ impasse.

[29] On April 5, 2020, the Respondent advised that it was “not possible” for the children to travel between both homes. Her email states:

… Our children are and have been more than fine – they are in fact thriving with my guidance and support as I am with them at all times and am able to provide all the attention, academic support, new skill base learning, etc that they require during these exceptional times. Michel can not do the same as he is working full time from home.

[30] On April 9, 2020, the Applicant sent an email to the Respondent. It states:

… In a March 14 th email to me, you stated you would take them until the end of the then 3 week school closure period; I replied that I did not accept what you were intending to do and that we needed to discuss what the coming weeks would look like. Given that the situation with COVID-19 is looking to last much longer than the initial period of school closure, it is not acceptable for you to continue to simply hold onto the kids until an unspecified date of your choosing, based on your health. With the unknown time that the pandemic will last, potentially months, and even waves over the next year, your unilateral choice is not sustainable and is not in their best interests. …

The kids are clearly stressed by not being able to see both of us, with both Tassia and Paskal asking about when they will see me almost daily, and worrying and crying about this during our calls at times. Your idea of doing “drive-bys” in a car where they could see me but not hug me or otherwise have physical contact with me is a profoundly cruel idea and unacceptable to me, and is not acceptable in the context of your retroactive proposal below.

You cannot justify keeping the kids indefinitely by claiming that you are better placed to do schooling from home during the school closure. The fact that I am working from home does not prevent me from dedicating time to educational work with the kids. My employer, as are many given the present situation, is well aware of the demands of COVID-19 is putting on families and is fully supportive of the work-life balance that is required . I have spoken to, and have been keeping up to date on the regular school emails from both their teachers and know the work being made available to them.

As I have already made clear, we are observing all health and safety recommendations and follow daily updates closely, I am aware that the children have been outside and around the neighbourhood while respecting physical distancing since they have been with you, and that items from the outside, such as food items, have entered your residence, which all expose you to risk. No greater risk to your health comes from transferring the children back and forth because the two households are taking the same health and safety precautions. I also continue to assure you that everyone around me is following the government safety guidelines . …

You have been exceedingly hostile and unkind to us, especially since I announced that I was moving in with Kate. Over the past months, your choice in behaviours have become increasingly worrisome, unpredictable, self serving and damaging to the children. Your current choice to prevent the children from seeing us when you know that they are cyring about not seeing me, is immature and selfish. I know that your doctor has your best interest in mind regarding your physical and mental health, but doctors are not judges nor are they obligated to consider case law before issuing their medical letters …

Please confirm whether a one week or two-week schedule for the kids is preferable to you. If the children are not back with me by tomorrow at 4 pm, I will commence an urgent court case. [Emphasis added]

[31] The Respondent replied by email on April 10, 2020. She indicated that she had “zero confidence” in the Applicant’s ability to protect the health of the children and her health during the COVID-19 pandemic. In response to the Applicant’s concern that it was unacceptable for the Respondent to simply hold onto the children until an unspecified date of her choosing based on her health, the Respondent stated:

This point above depicts clearly how incredibly naïve you have been and continue to be with regard to COVID its progression, the projections and what has been stated worldwide. You seem to be guiding yourself, and you have stated as much in MANY communications, and that you are abiding by the protocol daily given by the government and following what the health officials are saying. THIS IS NOT ADEQUATE NOR IS IT ENOUGH when you have an immunocompromised person in your immediate circle of care. …

The real measures taken in other places where this has been achieved have been martial law, enforcement of policies such as mask wearing at all times when outdoors, outdoors only in absolutely necessary circumstances, no more outdoor exercise, and only one per household may leave. These are the measures which we are likely headed toward as they are the only measures that have been proven effective at containing the virus. If they are not govt mandated than at least they should be common sense to someone who has kids with someone who is immunocompromised thereby making your own home an extension of mine – it is as if we are living together – THAT IS HOW YOU MUST BEHAVE – AS I DO, or else everything is for naught and the inviolability of my home becomes compromised. I cannot take this risk, as ORDERED by my doctor in the letter you and your lawyer received and I will attach again. … [Emphasis added]

[32] On April 15, 2020, the Applicant’s counsel confirmed that the Applicant was willing to comply with protocols that exceed government issued directives related to COVID-19. Her letter states:

… I understand that you have some health issues and you have provided a letter from your family doctor stating that you are immunocompromised. My client is sensitive to this and is willing to abide by any reasonable protocols you request in order to make you feel more comfortable and safe. He has confirmed many times over the course of the past three weeks while you have been withholding the children that he is sensitive to your health issues and he is strictly complying with all recommended government protocols, including social-distancing and only leaving the house for essential items and short walks for fresh air. You have stated that this is not enough for you and you therefore will not transfer the children until the COVID-19 pandemic is no longer a threat. This is completely unacceptable, particularly since this situation may go on for several more months.

If you would like to engage in a negotiation with me to discuss further protocols you would like him to adhere by, I am happy to entertain that. We are also proposing that this be done in the presence of a mediator so that you feel safe and comfortable with the conditions of access during this Covid time. …

However, if we do not receive your agreement to negotiate terms or mediate this issue by Thursday, April 16, 2020, we will proceed with preparing an urgent motion to be brought before the Court immediately. …

[33] The Respondent did not take the Applicant on his offer to mediate the resolution of this matter.

[34] The Applicant filed this Notice of Motion on April 17, 2020.

[35] On April 20, 2020, a triage judge determined that the Applicant’s motion was urgent and should be scheduled for a hearing on April 23.

Analysis

[36] Before turning to the issue of whether the children should be continued to be denied parenting time with the Applicant, the following procedural matters need to be addressed.

Filing of an Application

[37] The Applicant has not explained why he requires an additional 90 days to prepare his Application. The Applicant shall serve and file an Application within 30 days.

Case Conference & Mandatory Information Program

[38] The requirement for a case conference under the Family Law Rules may be waived under Rule 14(4.2) “… if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice”. It is in the interests of justice to waive the pre-condition of a case conference as it would have no other result than delay the resolution of motion for parenting time with his children after not having been with them in more than one month.

[39] For the same reasons, I waive the requirement that the parties attend a mandatory information program to Rule 8.18 of the Family Law Rules prior to the hearing of this motion.

Should the Children Be Denied Parenting Time with the Applicant Until COVID-19 is Resolved?

[40] The Applicant brings this motion to enforce the parenting time provisions of the Separation Agreement. The Respondent submits that the Applicant’s right to parenting time with the children should be suspended for as long as she requires for her own safety in order to protect her from the risk of contracting COVID-19.

[41] I adopt the following principles that were outlined by Justice Pazaratz in Ribeiro v Wright, 2020 ONSC 1829, paras. 6, 7, 10-14:

• The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19;
• Children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely until COVID-19 is resolved without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever;
• Existing parenting arrangements and schedules should continue subject to whatever modifications are necessary to ensure adherence to all COVID-19 directives from government and public health officials:
  • In some cases, a parent may have to forego their times with a child, if the parent is under self-isolation for a 14-day period as a result of recent travel; personal illness; or exposure to illness;
  • In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child;
  • In some cases, a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

[42] To determine whether the existing parenting and schedule should be modified, the Respondent must provide “… specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols”: Ribeiro, para. 21.

(a) The Respondent states that the March 13-16, 2020 ski trip to Barrie is evidence of the Applicant’s failure to comply with COVID-19 protocols. She states that this trip contravened a “new lockdown protocol” however has provided no evidence of this protocol. As the evidence above shows, a “lockdown”, in the form of a 14-day quarantine period, was only required at the relevant time for persons returning to Canada. “Social distancing”, which at that time included staying home “if you can” was not recommended by Toronto’s Medical Officer of Health until March 16, 2020. On March 18, 2020, Dr. de Villa further explained the new concept of social distancing and asked Torontonians to “make every effort to practice social distancing”. The Respondent has failed to establish that the ski trip was inconsistent with the protocols that existing at the time of the trip.

(b) The Respondent states that Paskal spent the day at the house of the Applicant’s parents on March 18, 2020. She also states that the Applicant’s parents had dinner at his home that evening. This is not disputed by the Applicant. However, the Respondent’s bald assertion that the Applicant violated the COVID-19 protocol is not supported by the evidence. She did not provide a copy of the specific protocol, or any protocol (whether directive, bylaw, order) that she alleges was breached. It was not until March 18, 2020 that Dr. de Villa explained that the concept of social distancing includes having “friends over for dinner” Given that her announcement indicates that visiting family in long-term care homes or hospital was not social distancing leaves open whether visiting family in their own homes was also impermissible. Given the timing of the “social distancing” announcement and its language, I find that the Respondent has failed to establish that the Applicant has behaved in a manner that was inconsistent with the protocols that existed on March 18, 2020.

(c) The Respondent states that the Applicant and Ms. O’Reilly continue to jog nightly. The Applicant denies this assertion and states that he and Ms. O’Reilly have went for daily walks to get fresh air. During these walks they stay within their neighbourhoods, choose quiet side streets or other routes that are far away from other people and at a time of day when fewer people are usually outdoors. They have not encountered many people and are much further than six feet away when other people are encountered. Walks around the neighbourhood even if all precautions are taken, as the Applicant has done, are inconsistent with the strict language of the aforementioned protocols provided by Dr. de Villa but not the protocols announced by the federal government which advised Canadians to “go outside to exercise but stay close to home” so long as a distance of at least two arms lengths is kept from other people and you have not been diagnosed with COVID-19, do not have symptoms of COVID-19, have not travelled outside Canada during the last 14 days, and are not required to quarantine or isolate: See Coronavirus disease (COVID-19): Prevention and risks: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html?topic=tilelink. In these circumstances, I find that the Respondent has failed to establish that the Applicant behaved in a manner that was inconsistent with the protocols that have been issued.

[43] Second, the denied parent must 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, para. 21. As described above, I am satisfied that the Applicant has provided repeated assurances that not only COVID-19 safety measures will be specifically followed but also measures that, in order to satisfy the Respondent’s demands, go far beyond the protocols. I do not accept the Respondent’s submission that the Applicant has no regard for her well-being or that of her children. Her concerns regarding the Applicant are largely overstated and unsupported by the evidence. I find that the Respondent has failed to establish a failure, inability or refusal the Applicant to adhere to appropriate COVID-19 protocols in the future.

[44] The Respondent submits her current medical condition dictates that she should have sole custody of the children until the COVID-19 pandemic no longer poses a threat to her health. The Respondent states that she has only left her home once since March 16, 2020 to get groceries. Since that time, her friends deliver her groceries. Her groceries are brought to the door of her home, she disinfects everything outside and then wipes packages and washes produce. She has also left the home once to go for a walk of less than 100 metres with the children and they all wore masks.

[45] In addition to the letter dated March 31, 2020 from Dr. Chernin that was appended to the Applicant’s affidavit, the Respondent has appended the following:

(a) A letter dated April 17, 2020 from Dr. Erika Frasca, also a family doctor with the Taddle Creek Family Health Team which stated:

To whom it may concern:

I am the family physician for the above patient. She is currently being treated for respiratory symptoms not yet diagnosed. We have referred her to a Respirologist for assessment and recommendations for diagnosis and treatment. Her appointment is pending for May 22, 2020. The treatments we have tried to date are not effective managing Ms. Berdichevsky’s symptoms. Given her symptoms are respiratory in nature, she is likely more vulnerable to complications from COVID19 and we have advised that she self-isolate and limit any potential exposures to infection . Unfortunately COVID19 has been quite unpredictable in terms of transmission/complications, and therefore we are recommending that Ms. Berdichevsky err on the side of caution and not only follow government protocols but also avoid contact with anyone who may be at increased risk for carrying the infection until we have more information on her diagnosis and/or more information on how COVID19 is transferred or treated. [Emphasis added]

(b) Dr. Frasca wrote another letter a few days later, dated April 20, 2020, with a further recommendation:

To whom it may concern

I am the family physician for the above patient since January 2016. Ms. Berdichevsky is currently experiencing respiratory symptoms which have not yet been diagnosed. I have referred her to see a Respirologist. The first consultation is pending for May 22, 2020. Ms. Berdichevsky’s symptoms have remained unchanged despite different medication trials. She is currently on another course of mediations that she will need to continue until she can be seen by Respirology. Due to the COVID19 pandemic, it is not advisable for her to be exposed to anyone outside her home and/or exposed to environments outside her control. [Emphasis added]

(c) The Respondent also appended her medical records from January 1, 2020 to March 31, 2020, which appear to be from her family doctor’s file, to her affidavit. The file includes records from many recent visits to her family doctors and two hospitals.

• Her records show that the Respondent has had asthma since she was 11 years old;
• She has reported low grade fever and/or ongoing coughing fits on several occasions in 2020. She had spasmic cough following pneumonia in 2017 however a diagnosis of pneumonia was ruled out on March 3. She has been prescribed Symbicort in place of Advair;
• On March 3, 2020, Dr. Timofeeva of the Women’s College Hospital provided the following assessment: “42 y/o with paroxysmal subacute cough (< 8 weeks) fatigue and low grade fevers. Etiology most likely related to viral reactive airway…”;
• On March 16, 2020, the Respondent was seen at the Emergency Department of the Toronto East General Hospital. The reason for the visit was fever/cough sore throat for five weeks.

[46] No explanation was provided by Dr. Chernin to support her view that the Respondent would be put at risk if the children were to move back and forth between their parents. It appears to assume that the Applicant will not follow all COVID-19 protocols. However, I have found that there is no basis for this view. Alternatively, Dr. Chernin’s recommendation could be based on the premise that compliance with the COVID-19 protocols are insufficient to protect the Respondent from contracting COVID-19 from her children. However, the letter from Dr. Chernin does not offer any guidance as to what additional requirements are needed. Dr. Frasca’s letter dated April 17, 2020 recommends that the Respondent avoid contact with “anyone who may be at increased risk for carrying the infection”. There is no evidence to suggest that the children, the Applicant or Ms. O’Reilly, are at increased risk of carrying COVID-19 at this moment nor in the future assuming that they comply with the COVID-19 protocols. A few days later, Dr. Frasca recommended that the Respondent not be exposed to anyone outside her home. No explanation was provided by Dr. Frasca as to why this opinion changed only three days later. There is nothing in Dr. Frasca’s last letter, dated April 20, 2020, or her family doctor’s medical records, which ends March 31, 2020, to explain why Dr. Frasca revised her views only three days after issuing her earlier recommendations.

[47] Further, Dr. Chernin’s concern for the Respondent’s mental health if the children were not to solely and indefinitely reside with the Respondent until the COVID-19 pandemic has resolved is unexplained. Her opinion does not reflect any consideration for the children’s needs and mental health as a result of being removed indefinitely from their father. The evidence shows that at lest one of the children, Tassia, has anxiety as a result of not being with her father due to the Respondent’s unilateral decision to flout this Court’s Order.

[48] Ms. O’Reilly’s affidavit states she has been told by the Applicant that the Respondent has she wished Ms. O’Reilly to vacate her home (which she shares with the Applicant) because she does not know her and does not trust her to take proper COVID-19 precautions. The Respondent did not deny this statement. Her affidavit states:

I am prepared to take the following steps, as well as any others deemed necessary by the Court, to ensure that all of us, particularly Tassia and Paskal, remain healthy and able to spend time together in person:

a. No individuals other than the usual residents of our home will be permitted to attend the home;

b. None of us will leave the home and return or permit the children to leave the home and return except in the following circumstances:

i. A dire emergency;

ii. Upon written medical advice;

iii. For the purposes of picking up and dropping off the children; or

iv. For the purposes of getting fresh air, provided that we remain at least six feet away from all other individuals at all times, as recommended by the On and Ontario government.

c. The recommendations of the Ontario government, including but not limited to thorough and frequent hand washing and the use of masks and gloves in situations which warrant them, will be followed;

d. All groceries and essential supplies will be delivered directly to the home or procedure using curbside pick-up, and all items will be disinfected before they are brought into the home;

e. The vehicle used to transport the children to and from their two homes will not be used or occupied by another other than Michel, the children and myself, and the vehicle will be disinfected before and after each use.

[49] While the Applicant has gone to considerable lengths to provide a very specific and realistic time-sharing proposal which fully address all COVID-19 considerations, in a child-focused manner, I find that the Respondent has failed to do so.

[50] During the course of the hearing of this motion I directed the parties to discuss whether they could agree on any additional constraints in addition to those found in the COVID-19 guidelines, that the parties could agree upon. The Respondent advised that she did not trust the Applicant to comply with any COVID-19 requirements based on his past behaviour. The Respondent’s lack of trust in the Applicant is a concern that I do not share based on the evidence that has been presented. The Respondent proposes that the children have video access and telephone access to the Applicant. She has also proposed that the Applicant park his car in front of her home so that the children could talk to him from a distance.

[51] Rather than a child-focussed approach, the Respondent proposes an unreasonable, self-centred approach that reflects her antipathy towards the Applicant as expressed by the language that she has used in her messages and affidavit. For instance, the Respondent suggested, on March 18, 2020, that the children could live with him so long as he lived “alone”. There is no rationale basis for this request other than to interfere with his relationship with Ms. O’Reilly by requiring her to leave her home. Subsequently, after weeks of withholding the children, the Respondent made the ridiculous assertion that the children are “thriving” without seeing their father even though it is the evidence of both parents that Tassia pleads to be with the Respondent.

[52] Further, it is clear from the evidence that the Respondent is actively undermining the children’s relationship with the Respondent by her words and her actions. For instance, the Applicant states that the children have told her on numerous occasions that they do not want to leave her home as she is providing the safest possible conditions and they know the same precautions would not be taken by the Applicant. If the above statement is true, it appears that the Respondent has created a situation where the children fear that they are putting their mother’s life at risk if they live with their father under any circumstances. No reasonable basis for this conclusion has been provided.

[53] The parties, particularly the Respondent, should keep in mind the warning given by Justice Pazaratz in McNeil v. McGuinness, 2020 ONSC 1918, para. 17:

Perhaps I can give high conflict parents a bit of a warning. …

a. Just because a Triage judge decides an issue isn’t urgent, it doesn’t mean the issue isn’t important. It simply means we have to prioritize which issues we currently have the resources to deal with.

b. The suspension of most court activities during the COVID-19 crisis means that – temporarily -- separated parents are largely going to be on “the honour system.”

c. We’re counting on parents to be fair and helpful with one another. To rise to the challenge and act in good faith.

d. Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay .

e. How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness.

f. Your reputation will outlast COVID-19.

g. So please don’t try to take advantage of the current situation.

h. In the long run, self-help will turn out to be a big mistake. [Emphasis added]

[54] It is in the best interests of the children to resume their parenting time, and restore their relationship, with their father immediately. Given that they have been apart more than five weeks, I order that the children be returned to their father for the next two weeks, followed by a week on, week off parenting schedule until varied by Order of this Court or the prior written agreement of the parties. To minimize the risk of contracting of the children, the parties or Ms. O’Reilly contracting COVID-19, I have imposed terms that go beyond the COVID-19 orders and directives issued by various levels of government. Ultimately, if the Respondent continues to believe that her safety remains at risk notwithstanding the terms of this Order, then she may decline having parenting time with the children until she views her circumstances differently or seek other relief.

Order

[55] Order to go as follows, on a temporary basis:

• The Applicant shall have parenting time with the child, Tassia Sereacki, born July 27, 2009, and Paskal Sereacki, born March 4, 2013, (hereinafter referred to as “the children”) commencing on Monday, April 27, 2020 at 7 pm, with exchanges between the parties’ homes on an alternating weekly basis occurring every Monday at 5 pm commencing on May 11, 2020;
• The City of Toronto Police, Ontario Provincial Police, Royal Canadian Mounted Police and/or such other law enforcement agencies as may have jurisdiction are hereby authorized and directed to enforce the above provisions of this Order, pursuant to section 36 of the Children’s Law Reform Act;
• The parties and Kathleen O’Reilly shall:
  • Not permit any person, other than the usual residents of their home, to attend their home;
  • Not leave their home, nor permit the children to leave their home, except in the following circumstances:
    • A dire emergency;
    • To attend a hospital, a medical appointment or upon written medical advice;
    • For the purposes of picking up and dropping off the children;
    • For the purposes of getting fresh air and exercise, provided that they remain at least six feet away from all other persons other than the usual residents of their home.
  • Ensure that all groceries and essential supplies are delivered directly to their respective homes or procured using curbside pick-up, and that all such groceries and supplies are disinfected before they are brought into their homes;
  • Disinfect their automobile before and after each use;
  • Any automobiles used by the parties and Kathleen O’Reilly to transport the children to and from their homes will not be used or occupied by anyone other the Applicant, Ms. O’Reilly, the Respondent and the children;
  • Comply with federal, provincial and municipal governmental orders and directions related to COVID 19, including orders and directives requiring frequent handwashing and the use of masks and gloves, as set out and updated here: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html https://www.ontario.ca/page/2019-novel-coronavirus#section-7 https://www.toronto.ca/home/covid-19/
• The parties shall refrain from discussing all court proceedings with the children and she shall refrain from making disparaging remarks concerning the other parent, their grandparents or Kathleen O’Reilly and shall not allow any other person to make disparaging remarks about them in the presence of the children;
• Service by one party on the other of the materials to date by email is validated. Service by email is permitted so long as the suspension of regular court operations continues;
• The parties shall deliver their written costs submissions, no more than five pages in length, by April 30, 2020, responding costs submissions by May 5, 2020 and reply submissions by May 7, 2020. I encourage the parties to make every effort to resolve the question of costs;
• The Applicant shall serve and file an Application within 30 days;
• The Applicant is granted leave to bring this motion prior to attending a case conference and a mandatory information program;
• This order takes effect without a formal order being signed and entered.

RELEASED: April 27, 2020 Faieta J.