COURT FILE NO.: FS-17-89265-00
DATE: 2020 04 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JEYAMATHAN JEYARAJAH v. ENTHUSHAA JEYAMATHAN
BEFORE: Kumaranayake J.
COUNSEL: Gary Joseph and Melissa Richa, for the Applicant
Joseph Lo Greco, for the Respondent
HEARD: April 22, 2020 (by teleconference)
E N D O R S E M E N T
Nature of Motion
[1] The Applicant and the Respondent are the parents of two children: Rishaan Jeyamathan, born August 12, 2013, currently 6 years old (“Rishaan”) and Nemesh Jeyamathan, born February 12, 2015 (“Nemesh”), currently 5 years old (“the children”).
[2] Pursuant to the Temporary Order of Price J., dated January 15, 2019 (“Price J.’s Order”), and the Temporary (without prejudice) Order of Seppi J., dated August 22, 2019 (“Seppi J.’s Order”), the Applicant is to have parenting time with the children on Tuesdays and Thursdays from 6:00 p.m. to 8:00 p.m. and on alternate weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m. (to Monday at 5:00 p.m. if his time with the children falls on a long weekend). Seppi J.’s Order also includes terms that after the parties consult with each other, the Applicant has final decision-making authority for the children’s health and medical issues and the Respondent has final decision-making authority for the children’s education.
[3] The Applicant alleges that due to the COVID-19 pandemic, the Respondent has unilaterally suspended the Applicant’s in-person parenting time with the children and insisted that the Applicant’s parenting time be exercised only through Skype.
[4] The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. Pursuant to the Superior Court of Justice’s Notice to the Profession dated March 15, 2020, found at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (“the Notice to the Profession”), the Applicant made a request for his motion for access to the children to be heard on an urgent basis. The Applicant seeks a resumption of his access, in accordance to the existing orders of Price J. and Seppi J. He also seeks police enforcement and make-up parenting time.
[5] By my Endorsement dated April 14, 2020, I made a preliminary determination that the motion was urgent and gave directions for the filing of further materials and that the matter would be heard by teleconference on April 22, 2020 at 3:00 p.m. My Order was without prejudice to the Respondent’s ability to give submissions on the Applicant’s claim of urgency for his motion.
[6] In response to the Applicant’s motion, the Respondent brought a cross-motion. She requested that the Applicant’s motion be dismissed. She also requested that during the COVID-19 pandemic, the Applicant’s access be temporarily suspended, and that the Applicant have liberal and generous access via Skype, any time between 9:00 a.m. and 7:00 p.m. weekly.
Material served and electronically filed
[7] For the hearing, I was provided with and reviewed the following:
Applicant’s Notice of Motion, dated April 2, 2020;
Applicant’s unsworn Affidavit, filed April 2, 2020;
Respondent’s Notice of Motion, dated April 20, 2020;
Respondent’s unsworn Affidavit, filed April 20, 2020;
Applicant’s unsworn Reply Affidavit filed April 21, 2020;
Applicant’s Brief of Law;
Respondent’s Statement of Law;
Applicant’s draft order; and
Respondent’s draft order.
[8] At the beginning of the hearing, the parties affirmed their affidavits before me.
Urgency
[9] As stated above, the preliminary determination that the Applicant’s motion was urgent was without prejudice to the Respondent’s right to make submissions on urgency.
[10] The Respondent took the position that the Applicant’s motion was not urgent. To summarize, the Respondent submitted that the Applicant had not been cooperative in taking preventative measures for the risks of COVID-19 and he did not attempt to problem-solve before requesting permission to bring his motion on an urgent basis. Further, the Respondent submitted that neither the issue of police enforcement nor make-up visits was urgent.
[11] With respect to the Respondent’s cross-motion, the Respondent’s counsel submitted that her cross-motion was only urgent if the Applicant’s motion was permitted to proceed. From that submission, I take it that had the Applicant not brought his motion, the Respondent would not have brought a motion to suspend the existing orders for the Applicant’s in-person parenting time.
[12] In determining urgency in the context of the current suspension of regular operations of the Superior Court of Justice, I am guided by the Notice to the Profession and the developing jurisprudence. The Notice to the Profession states:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
[13] In Kostyrko v. Kostyrko, 2020 ONSC 2190, LeMay J. noted that this list is not exhaustive and that each judge retains discretion to determine urgency. I agree.
[14] In Thomas v. Wohleber, 2020 ONSC 1965, at para. 38, Kurz J. outlines the factors that are necessary to meet the urgency requirement as set out in the Notice to the Profession:
The concern must be immediate; that is one that cannot await resolution at a later date;
The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[15] In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. stated, at para. 11, that “[i]n most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.”
[16] At para. 20, Pazaratz J. noted that parents “should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.” I agree and adopt this view.
[17] In Thibert v. Thibert, 2020 ONSC 2409, Pomerance J. summarized, at para. 2:
Various cases have considered the impact of the pandemic on access orders. It is clear that the pandemic, standing alone, is not a reason to suspend parental access, particularly where there is evidence to indicate that appropriate precautions are being taken to avoid exposure to infection.
[18] Without either an agreement from the Applicant to suspend his in-person parenting time or a court order, the Respondent’s decision to refuse to make the children available for in-person parenting time is a self-help remedy and cannot be condoned: see Skuce v. Skuce, 2020 ONSC 1881, at para. 36.
[19] It is not known at this time when this pandemic will end or when the Superior Court of Justice will be able to resume its regular operations. The children’s well-being includes in-person contact with their father as the existing orders for access have determined that this is in their best interests. They are young and have not had in-person contact with their father for approximately one month.
[20] Therefore, in exercising my discretion, I have determined that the Applicant’s motion is urgent, but only on the issue of the resumption of his in-person parenting time. The issues of police enforcement or make-up access are not urgent. It should be noted that granting leave does not necessarily mean that the relief sought by the Applicant will be granted.
Issue
[21] The issue to be determined is whether there should be a resumption of the Applicant’s in-person parenting time in accordance with the existing orders of Price J. and Seppi J.
[22] If I determine that the Applicant’s in-person parenting time should not resume in accordance with the existing orders, then I must also determine if his parenting time should be by Skype, as proposed by the Respondent.
Position of the Parties
The Applicant
[23] The Applicant submits that his parenting time has been determined by the orders of Price J. and Seppi. J. and that both orders were made on consent. Further, Seppi J.’s order includes a term that he has final decision-making authority for the children’s health and medical issues.
[24] The Applicant submits that the Respondent unilaterally suspended his in-person parenting time with the children. On March 17, 2020, the Respondent advised the Applicant that as he was working, the Applicant should only see the children once per week. The Applicant advised the Respondent that he was also concerned about the children’s safety and welfare, he was able to work from home and he wanted to continue with his court-ordered parenting time.
[25] The Applicant has been working from home since March 17, 2020. He is practising social distancing and taking all necessary precautions. He lives alone. He does not visit anyone else and he does not permit anyone to visit him. He lives in a two-bedroom condominium unit with two washrooms. His condominium building is taking necessary precautions to protect against the spread of the COVID-19 virus. In his evidence, the Applicant included a notice from his condominium building outlining precautions that were being taken. For example, these precautions include closing all common areas, cleaning and disinfecting of core areas throughout the building, protocols for elevator use and parcel and food deliveries, postponement of renovations and non-emergency services, information for those who should self-isolate and protocols for those who are self-isolating.
[26] The Applicant submits that the Respondent lives with other people who go in and out of her home.
[27] The Applicant points out that the Respondent permitted him to spend time with the children on March 17, 19, 20, 21, and 22, 2020.
[28] The Applicant notes that he has not travelled and does not have symptoms of COVID-19, so there is no need for him to self-isolate for a period of 14 days before he could see the children again in person.
[29] On March 24, 2020, approximately three hours before the start of his parenting time, the Respondent informed the Applicant that the children would not be leaving her home due to social distancing practices. The Applicant reassured the Respondent that the children would be safe and that he would be picking them up at the time set out in the existing order. The Respondent maintained that she would not let the children go out until it was safe for them to do so and that the Applicant could see the children through Skype, if the children wished to do so.
[30] On March 24, 2020, the Applicant’s counsel informed the Respondent’s counsel that the Applicant was working from home, self-isolating and taking all necessary precautions and that the Applicant would be attending to pick up the children that evening. No response was received from the Respondent’s counsel.
[31] The Applicant attended at the Respondent’s home on March 24, 2020 and waited for fifteen minutes, but the Respondent refused to let the children leave with him.
[32] On March 26, 2020, through counsel, the Applicant confirmed that he was taking all necessary precautions and that he would be attending that day to pick up the children for his court-ordered parenting time. The Applicant attended at the Respondent’s residence and waited 15 minutes, but the Respondent refused to let the children leave with him.
[33] On March 31, 2020, the Respondent did not let the Applicant have his in-person court-ordered parenting. However, she permitted the Applicant to have parenting time for one hour by Skype.
[34] The Applicant acknowledges that he has had some parenting time via Skype but he alleges that the Respondent interferes with this time by distracting the children with toys and TV; holding the children away from the screen so the Applicant cannot see them; cutting short the Skype time; and monitoring the Applicant’s conversations with the children, which prevents the children from openly communicating with the Applicant.
[35] The Applicant submits that there has been a history of the Respondent trying to thwart the Applicant’s role as a parent, including previous occasions in which the Respondent has withheld the children from the Applicant in breach of court orders. The Applicant also submits that there have been occasions where the Respondent has previously and unnecessarily involved the police and CAS.
[36] In the Applicant’s view, the Respondent is trying to change the status quo and will indefinitely suspend the Applicant’s in-person parenting time. The Applicant believes that the Respondent is alienating the children from him.
[37] The Applicant states that the Respondent only raised the concern of Rishaan’s asthma after the Applicant brought his motion. In January 2020, the Applicant and the Respondent attended Rishaan’s appointment with his asthma specialist. Rishaan was given a prescription for puffers as a preventative measure, to be used starting in April.
[38] The Applicant states that the Respondent never told him that Rishaan had started to experience wheezing. The Respondent only told him on March 24, 2020 that Rishaan had a “sniffy” nose.
[39] When he last saw the children on March 22, 2020, Rishaan was in good health. If Rishaan needs to use his puffers, the Applicant will be able to help Rishaan use his puffers as he has done so before.
[40] When the Applicant exercises his parenting time, the children will go directly from the Respondent’s home to his home and will travel in his car. If the Applicant needs to attend to essential errands, he will do so when the children are not in his care.
[41] Since March 19, 2020, he has been using gloves and masks when he attends for essential errands and when he attends for access exchanges. When he is in the elevator, he uses a paper towel and gloves to push the buttons. He does not let the children push the buttons. The Applicant is also taking precautions by frequent handwashing, cleaning and disinfecting surfaces.
The Respondent
[42] The Respondent submits that in-person access visits place the children at a great health risk because Rishaan has asthma. Rishaan’s asthma gets worse in the spring due to his allergies and this year, Rishaan’s asthma developed again due to environmental exposure. The Applicant is aware of Rishaan’s medical issues. Due to Rishaan’s asthma, the Respondent submits that the children should stay home during the COVID-19 pandemic.
[43] Despite the Respondent’s opposition, the Applicant had in-person parenting time with the children on March 17, March 19, and from March 20 to March 22, 2020.
[44] The Respondent states that the Applicant has not acknowledged that Rishaan began showing cold symptoms (running nose and wheezing) when he returned from access visits with the Applicant. She says that there has been a visible deterioration in Rishaan’s condition.
[45] She further submits that the Applicant does not wear masks or gloves when he picks up the children. She alleges that the Applicant did not follow health and safety precautions as he would not sanitize his hands before holding the children. When they were in his car, the Applicant instructed the children to remove the gloves and neck warmers which the Respondent gave to them in lieu of masks. He returned the children without the neck warmer and gloves.
[46] The children have told her that on their last visit with the Applicant, he permitted them to push the elevator buttons. Further, the Respondent does not believe that the Applicant lives alone as the children have previously told her about a lady residing with the Applicant.
[47] The Respondent also states that the Applicant cannot leave the children at home alone so he would have to take them with him when he goes shopping or must do other essential errands.
[48] With respect to Skype, the Respondent submits that she was trying to facilitate access through Skype and did not intend to interfere with the Applicant’s time with the children. She states that the children were inattentive with the Respondent so she would give them toys and colouring books so that they would sit at the table. She further alleges that the Applicant made no efforts to engage the children in age-appropriate activities and conversations during their Skype calls and is unfairly blaming her.
[49] According to the Respondent, to permit the children to have in-person parenting time with the Applicant would put them at risk, especially Rishaan as he suffers from asthma. She is concerned that the Respondent is not practising social distancing before and after he exercises his access to the children.
[50] The Respondent alleges that the Applicant has a history of neglect, carelessness and poor maintenance of the children’s hygiene. She also referred to the Applicant’s alleged misrepresentations in previous case and settlement conference briefs.
Analysis
[51] During this unprecedented pandemic, there is a presumption that orders for parenting time will be followed unless it can be demonstrated that continuing to follow court orders would pose a real risk to the children’s safety and well-being. The orders reflect what is in the best interests of the children.
[52] In this case, the Applicant’s parenting time was established by the orders of Price J. and Seppi J. Both orders were made on consent. Counsel for the Respondent pointed out that these orders were made as a result of negotiations and not after argument. In my view, it makes no difference that the orders resulted out of negotiations at a case conference and a settlement conference, as opposed to a contested motion. Both are orders, and there is no question that they are valid. The parties agreed to both orders being made.
[53] Having reviewed the evidence of the parties and considered the submissions of counsel, for the reasons outlined below, I am not satisfied that the Respondent has demonstrated that there would be a real risk to the children’s safety and well-being if the Applicant’s parenting time continues as set out in the Orders of Price J. and Seppi J. Therefore, the Applicant’s parenting time shall immediately resume in accordance with the Temporary Order of Price J., dated January 15, 2019, and the Temporary (without prejudice) Order of Seppi J., dated August 22, 2019.
Existing orders for Applicant’s parenting time
[54] Prior to Price J.’s order, the Applicant’s parenting time was governed by the Temporary Order of Lemon J., dated May 2, 2018. The Applicant’s parenting time was on Wednesdays from 6 to 8 p.m. and on alternate weekends from Fridays at 7:00 p.m. to Sundays at 5:00 p.m.
[55] By Price J.’s order, the Applicant’s parenting time was expanded to Tuesdays and Thursdays (instead of Wednesdays) from 6:00 p.m. to 8:00 p.m. There was no change made to his parenting time on alternate weekends.
[56] By Seppi J’s order, there was a further expansion of the Applicant’s parenting time. While there was no change to his time with the children on Tuesdays and Thursdays, his parenting time on alternate weekends was increased by two hours: Fridays at 7:00 p.m. to Sundays at 7:00 p.m. Further, if his parenting time fell on a long weekend, the Applicant’s parenting time was extended to Mondays at 5:00 p.m.
[57] The current regime for the Applicant’s parenting time, being Tuesdays and Thursdays and alternate weekends, has been in place for over one year. There is no evidence before me that prior to the COVID-19 pandemic arising, there was any concern with the Applicant’s parenting time with the children.
Final decision-making authority for the children’s health and medical issues
[58] The existing order of Seppi J. also provides that the Applicant has final decision-making authority for the children’s health and medical issues. As stated above, this order was made on consent.
[59] There is no evidence before me that, prior to the current pandemic, there were any concerns with how the Applicant exercised his decision making-authority for the children’s health and medical issues.
Preventative measures and Rishaan’s asthma
[60] It is clear from the evidence before me that both parents are being responsible and are practising social distancing. Both are being proactive in their use of masks and gloves and in ensuring that proper safety and handwashing protocols are being followed. In the home of the Respondent, this also includes her aunt and uncle.
[61] In his argument, Respondent’s counsel referred to the Respondent being concerned for the health of her aunt and uncle, who are older, with whom she and the children live. Counsel argued that the Respondent is concerned that if the children have in-person contact with the Applicant, then this will also pose a risk to her aunt and uncle.
[62] This argument is problematic for two reasons. First, the evidentiary record before me does not include any evidence from the Respondent of this concern.
[63] Second, even if this evidence was in the record before me, this would contradict the Respondent’s detailed evidence in which she describes the interaction with her aunt and uncle and how they maintain social distancing within the home. The Respondent outlined that she and the children occupy one level of the home and her aunt and uncle remain on a different level. She described how her uncle is the designated person in the home who leaves the home to purchase groceries and the procedure that is used to disinfect the groceries when items are brought into the home. The Respondent gives specific evidence that she and the children “do not come into close physical contact with my uncle when he drops off supplies…The children are always in their room when I receive supplies.”
[64] While I can understand that the Respondent is concerned about Rishaan’s asthma, particularly during this pandemic, the evidentiary record before me does not support her position that Rishaan’s medical condition has become worse as a result of in-person parenting time with the Applicant.
[65] The Respondent has made a general statement that “Rishaan’s asthma developed this year again due to environmental exposure.” Given that Rishaan was given a prescription in January 2020 to use his puffers in April, it is clear that it was anticipated that Rishaan would need to use his puffers this spring.
[66] The Respondent has not provided specific evidence as to what is meant by “worsened” or even the particulars of when or what occurred. Nowhere in the messages exchanged by the parties or the correspondence exchanged through counsel, is there evidence that the Respondent told the Applicant that Rishaan was wheezing. The only evidence contained in the messages was that on March 24, 2020, the Respondent referred to Rishaan having a “sniffy” nose.
[67] There is no evidence that Nemesh has any medical issues.
[68] The Respondent alleges that the Applicant is not practising social distancing or following safety precautions. I find that most of the Respondent’s concerns are based on speculation and not supported by the evidence before me.
Use of Skype
[69] While the Applicant has been able to communicate with the children by Skype, there have been issues. First, given that the children are five and six years old, I find it problematic to leave it up to the children to decide whether they want to spend time with the Applicant by Skype (this was initially suggested by the Respondent on March 24, 2020).
[70] In her affidavit, the Respondent has acknowledged that the children have had difficulty maintaining their attention for Skype calls. Given the children’s ages, this is understandable. Pursuant Price J. and Seppi J.’s orders, the Applicant’s parenting time with the children is unsupervised. However, by the nature of Skype, it is inevitable that the Respondent will be monitoring the Respondent’s interactions with the children.
Allegations of previous conduct
[71] Both parties have made allegations about the others’ previous conduct. Neither has provided any evidence to support their allegations. I must determine the issue on the evidentiary record before me. Further, even if there was evidence of such previous conduct, the relevance of that evidence would be an issue, given that the existing orders for parenting time were made on consent.
Conclusion
[72] I agree with Tobin J. who stated in Tigert v. Smith, 2020 ONSC 2220, at para. 22,
The rational[e] for continued parent contact is that, under the existing order, it is presumed to be in the child’s best interests. This rational[e] gives way if, as a result of continued contact, the child’s safety or wellbeing would be compromised.
[73] Based on the evidentiary record before me, I am not satisfied that the safety and well-being of either child, and in particular, Rishaan, would be compromised if the Applicant exercised in-person parenting time. Therefore, the Applicant’s parenting time shall resume immediately in accordance with the existing orders of Price J., dated January 15, 2019 and Seppi J., dated August 22, 2019.
[74] As Pazaratz J. stated in Ribeiro, at para. 10,
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.
[75] The Applicant is presumptively entitled to costs. However, I would strongly encourage the parties to resolve the issue of costs. If they cannot do so, I will receive written costs submissions as outlined below.
Order
[76] For the reasons outlined above, I make a Temporary Order, which I have signed. The terms of this Temporary Order are:
The Applicant’s motion shall proceed on an urgent basis, pursuant to the Court’s Notice to the Profession, dated March 15, 2020 only on the issue of the resumption of in-person parenting time.
The Applicant’s parenting time with the children, Rishaan Jeyamathan, born August 12, 2013, and Nemesh Jeyamathan, born February 12, 2015, shall immediately resume in accordance with the Order of Justice Price, dated January 15, 2019 and the Order of Justice Seppi, dated August 22, 2019.
The Respondent’s cross-motion is dismissed.
Within three weeks of the resumption of the Superior Court of Justice’s regular operations, the parties shall file in the Court File all documents that were electronically filed for these motions and shall pay the applicable filing fees.
If the parties cannot resolve the issue of costs, then written submissions shall be submitted as follows:
a. By May 8, 2020, the Applicant shall serve his cost submissions, which shall not exceed three (3) pages and shall be in 12-point font and double-spaced.
b. By May 22, 2020, the Respondent shall serve her cost submissions, which shall not exceed three (3) pages and shall be in 12-point font and double-spaced.
c. The cost submissions shall be sent by email to my judicial assistant. The email address is: sherry.mchady@ontario.ca.
d. The page limits referred to above exclude bills of costs, case law, and offers to settle, if any.
e. There shall be no reply cost submissions.
f. Within three weeks of the resumption of the Superior Court of Justice’s regular operations, the parties shall file their costs submissions in the Court File.
- This Order takes effect from the date that it is signed and released and without the necessity of the Order being issued and entered.
Kumaranayake J.
DATE: April 27, 2020
COURT FILE NO.: FS-17-89265-00
DATE: 2020 04 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JEYAMATHAN JEYARAJAH v.
ENTHUSHAA JEYAMATHAN
COUNSEL: Gary Joseph and Melissa Richa, for the Applicant
Joseph Lo Greco, for the Respondent
HEARD: April 22, 2020 (by teleconference)
ENDORSEMENT
Kumaranayake J.
DATE: April 27, 2020