Newmarket Court File No.: FC-17-054740-00 Date: 2020-05-07 Superior Court of Justice – Ontario – Family Court

Re: MHFL, Applicant And: JLC, Respondent

Before: The Honourable Mr. Justice P.W. Sutherland

Counsel: Howard Feldman, for the Applicant/Father Pauline Leung, for the Respondent/Mother

Heard: April 28, 2020

Decision on Motions

Introduction

[1] On April 16, 2020, I ordered a hearing via telephone on the urgent motions brought by the applicant and the respondent.

[2] The parties entered into a Minutes of Settlement dated April 28, 2020 that resolved most of the issues of the motions, including that there will be no order for costs.

[3] There are two issues that the parties could not resolve. Below is my decision on those two unresolved issues.

Background

[4] The parties have twin daughters, BL and CL, born February 9, 2011 (the children). There are two final orders that deal with the issues arising from the breakdown of their marriage including custody and parenting schedule.

[5] On July 29, 2019 DiLuca J. granted a final consent order indicating that the children of the marriage to reside in Markham, Ontario and a holiday parenting schedule.

[6] On December 2, 2019, Bennett J. granted a final consent order that the parents shall have shared parenting and a regular and summer parenting schedule.

[7] Due to the COVID-19 pandemic, the respondent has refused to present the children to the applicant pursuant to the parenting schedule as ordered by Bennett J.

[8] The applicant’s daughter from a previous relationship, A resides in his residence with her fiancé, E, along with V, a niece of the applicant. A is a registered nurse that works at a hospital located in York Region, in the Intensive Care Unit (ICU). She treats individuals who have contracted the COVID-19 virus (the virus). Her fiancé works as a regional manager at a food chain.

[9] The respondent resides with her new spouse.

[10] There was communication between the parties through email and letters exchanged between their respective counsels.

[11] In a nutshell, the respondent refused to permit the applicant from having in person parenting time with the children due to the fact that A is an ICU nurse and her fiancé, E works out of the home. The respondent demanded that A isolate from the children and they have no physical contact.

Issues

[12] The two unresolved issues are:

a) Should A be completely isolate from the children when the applicant has parenting time with the children, which means that A reside in the basement, to keep away from the children when they are at the applicant’s residence? b) If one of the parents or occupants where the children are staying have symptoms of or contract the virus, should the children be immediately returned to other parent or can the children remain in the household with the occupant that has symptoms of or have contracted the virus?

Should A be ordered to self-isolate?

Position of the Parties

[13] The respondent submits that A should be completely isolated from the children when the children are with their father. A is not a parent of the children. It is acknowledged that A has a positive relationship with the children but due to her occupation, the respondent submits, A presents a health risk to the children. The respondent urges the court to take judicial notice of the facts that front line workers, like A, are excessively exposed to the virus. Front line heath care workers have contracted the virus. Health care workers have passed away due to the virus. There have been reports of the lack of Personal Protective Equipment (PPE) in the healthcare field. The children should not be exposed to such a risk. The applicant has the ability in his household for A to self-isolate. It is in the best interest and health of the children that A be isolated from the children.

[14] The applicant argues that there is no medical evidence that supports the position of the respondent. There are protocols that public health and the hospital have issued. The evidence presented clearly indicate that A and the applicant are following those protocols. The court must be cognizant of the social implications of the position of the respondent. If any person in a household is a frontline worker that is not a parent of children subject to a parenting schedule and that person is forced to isolate, this would have a significant negative ripple effect on front line workers. The composition of the family unit has changed over the years. There are family units with new spouses, older children from the separated relationship or new relationships – blended families. To force children or new spouses in blended family situations to isolate in order for a parent to have visitation with their children would cause undue hardship. What if the parties live in an apartment? What if there is no means to isolate? Does the front line worker have to move to a hotel? What if the front line worker cannot afford such a cost? The applicant argues that the social situation where there are new spouses, older children or children from a previous relationship are occupants to force them to isolate just because they are frontline workers would be unworkable, cause financial and emotional hardship and send the wrong message.

Analysis

[15] I first wish to state the obvious, we are living in difficult and exceptional times. The courts, along with other institutions and all Canadians are learning to be creative and flexible to deal with the consequences of the virus. There is no play book for the present situation.

[16] The courts, along with everyone else, must be governed by the best available science. As a consequence, the court must be governed by cogent, specific and particularized evidence. Theory or speculation cannot rule the day. The court must take into consideration and be cognizant of the advice of the public health professionals and the science. To not do so could lead us down a path of fear and unwarranted suspicion of others. We must not follow that path of fear and suspicion.

[17] The affidavit material filed reveals that the applicant, V, E and A are following the science. They are abiding by the protocols mandated by Canada Public Health. A is also following the protocols mandated by the hospital.

[18] A in her affidavit makes it clear of the protocols mandated by the hospital and public health and that she is following those protocols. To not do so would put herself, her colleagues, patients and family at risk. Something, she has deposed, she would not do. As A stated in paragraphs 10 and 11 of her affidavit dated April 19, 2020:

10. Secondly, I do not have unprotected contact with a patient. I have protected contact with a COVID-19 patient or a patient suspected of having COVID-19. I comply with the hospital and professional regulations to wear an N95 mask, gown, gloves, scrubs, covers on my hair and shoes and any other applicable wear. Members of the public and many of the essential workers do not have all of the personal protective equipment that and my colleagues use. They also do not have the knowledge regarding how to properly put on and take off personal protective equipment to prevent self-contamination.
11. If I had the virus I would not be permitted to work.

[19] The Canada Public Health website provides information concerning the symptoms of the virus and measures that can be taken to minimize, if not prevent, the spread of the virus (https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html) (the Protocols). The website does not indicate that health care workers must self-isolate or quarantine if they do not have any of the symptoms of the virus. It does indicate steps a health care worker, like others, can take to protect family and occupants of their residences. The website does indicate that if a person has any of the symptoms outlined or have been tested positive for the virus, that person must immediately self-quarantine.

[20] The respondent has provided the court with several cases that she submits support her position that A must self-isolate when the children attend at their father’s residence.

[21] In reviewing the cases provided by the respondent, I do not disagree with the statements that presumptively the court order must govern. Further, in times like this, the parents must be flexible and cooperative to make decisions in the best interest of their children. As Pazaratz J. stated in Ribeiro v. Wright, 2020 ONSC 1829:

… And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

Each family will have its own unique issues and complications. There will be no easy answers.

But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely. (paras. 16, 17 and 18)

[22] There is no evidence presented that would indicate that the applicant, the occupants of the applicant’s home, and particularly A do not and will not follow the Protocols. The applicant, A, V and E in their respective affidavits have indicated that they will indeed follow the Protocols. Given the Protocols and the evidence provided on the mandates from the hospital, the best that the court can ascertain that the applicant and A can follow are the protocols mandated by the hospital and the Protocols.

[23] In addition, I do have one further concern with the request of the respondent and that is with logical consistency. The applicant and A have deposed that all the parties in the home do not self-isolate, given that none of them are exhibiting any of the symptoms of the virus. This leaves the issue that if A has to self-isolate for the sake of the children, would she not have to do the same with all occupants of the residence? This would translate that A would have to in effect be quarantined while in her residence, even though she exhibits no symptoms. The respondent submitted that she does not wish for A to isolate from others in the residence but just when the children attend. There is a lack of logical consistency because if A is at a higher risk for the children, she is a higher risk for the occupants of the residence. The respondent has not requested that all the occupants of the home should have to self-isolate when the children are in attendance. I point this out to appreciate the request of the respondent has a far reaching ripple effect and without a basis in science/medicine is not practical or necessary.

[24] Thus, I do not accept the proposition of the respondent. Not only is it not supported by the medical information to date but it is also not logically consistent or necessary, based on the medical information.

[25] Having said this, all parties including the occupants of the applicant’s and respondent’s home agree to strictly abide by the evolving Protocols broadcasted by Canada Public Health.

[26] I therefore do not find that A must self-isolate when the children are in attendance at the applicant’s residence, unless the Protocols mandate or on the advice of medical practitioners that she should.

Where do the children reside if a parent or occupant of the parent’s home shows symptoms of the virus?

[27] The question posed is more of a medical one then that of a legal one.

[28] The court has less knowledge and expertise then that of medical practitioners or the information published by Canada Public Health.

[29] As far as the court is concerned, the parents and the occupants of the homes should strictly follow and comply with the most updated Protocols. If an occupant of the home or either of the parents exhibit symptoms of contracting the virus or have tested positive for the virus, each parent should contact a health practitioner and obtain medical advice and/or obtain information from the published protocols and directives from Canada Public Health.

[30] From reviewing the Protocols, as outlined above, it appears that the children should self-isolate for the 14 days to ascertain if they exhibit symptoms of the virus and medical practitioners should be consulted in order for the parents to make a knowledgeable and informed decision on where the children should reside.

[31] Accordingly, the court can only answer the issue by stating that the parents should receive medical advice from medical practitioners on where the children should reside if any of the occupants in the respective homes of the parents or the parents themselves exhibit symptoms of the virus or have tested positive with the virus.

Conclusion

[32] The court answers the issues as follows and orders:

1. A does not need to self-isolate when the children are in the applicant’s residence, except if the Protocols of Canada Public Health and/or a medical practitioner advises that she must self-isolate.
2. The parents should follow the medical advice of medical professionals and/or the Canada Public Health Protocols, if they or any of the occupants in their respective homes exhibit symptoms or test positive for the virus.
3. The parents must strictly adhere to and comply with the Canada Public Health Protocols and take all necessary steps that the occupants or attendees at their respective residences comply with the Canada Public Health Protocols.
4. There will be no order for costs given the agreement of the parties.

[33] Either party may provide me with an approved draft order for signature. If the parties cannot agree on the form and content of the draft order, either may request a conference call with me through my judicial assistant, Helena Howell at Helena.Howell@ontario.ca.

Justice P.W. Sutherland Released: May 7, 2020