Court File and Parties
Newmarket Court File No.: FC-16-51178-00 Date: 2020-04-30 Superior Court of Justice – Ontario – Family Court
Re: Navin Mahendra Lall Pollard, Applicant And: Sonia Joshi, Respondent
Before: The Honourable Justice H. McGee
Counsel: A. Pollard, Counsel for the Applicant J. Jagtoo, Counsel for the Respondent
Heard: Electronically April 30, 2020
Ruling on Motion
Motion by Respondent for an Urgent Motion Granted
[1]
Background
As a result of COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notices to the Profession dated March 15, 2020 and April 2, 2020.
2By 14B motion dated April 29, 2020, the applicant seeks an urgent motion to address the withholding of parenting time for the parties’ son, “J.” born January 15, 2016. He describes a significant breach of the final Order of February 25, 2019 which provides for joint custody. The applicant sets out the loss to “J.” of their close relationship, the extensive COVID-19 measures that he has put in place and his exhausted efforts to resolve the situation. He seeks make-up time to rebalance the father-son relationship.
3Although not necessary to this determination, the applicant includes a brief history of the parties’ parenting relationship. It shows a pattern of maternal gatekeeping, the source of which was explored within a report of the Office of the Children’s Lawyer dated March 1, 2017. At that time, Ms. Joshi’s hypervigilance, preference to parent unilaterally and poor couple communication supported a strong recommendation for joint custody. Those dynamics may still be in play given the subsequent court attendances occasioned by parenting interruptions.
[4]
Analysis
As set out in the applicant’s Statement of Law, there is a presumption that an existing court Order should be respected and complied with not only because it is an Order of the court, but because it reflects a determination that meaningful parenting time with both parents is in the best interests of the child. Unilaterally removing a child’s parent through self-help is prohibited. A parent who seeks to do so must obtain a court Order permitting such action.
5In this case, the onus is on the mother to provide specific evidence of “J.’s” health and safety being put at risk, or examples of behavior that is inconsistent with COVID-19 protocols that would expose him to risk.
6The harm, or risk of harm of exposure to COVID-19 must exceed the existing harm caused to “J.” by refusing him parenting time with his father.
[7]
Disposition
I find that this is a situation of urgency that meets the criteria set out in the Notices of March 15, 2020 and April 2, 2020. A motion in writing shall proceed. The applicant’s 14B motion shall be deemed to be a Form 14.
8The respondent’s materials shall be due by 4:30 p.m. on May 6, 2020, reply if necessary, by May 8, 2020 at 12:00 p.m. Parties are to file a proposed draft Order with respect to make-up access.
9A timetable for costs submission shall be provided upon the release of my decision. Parties are encouraged to exchange Rule 18 Offers to Settle, which are not to be filed until after the release of the decision.
McGee J.
Date: April 30, 2020
