Court File and Parties

Oshawa Court File No.: 787/19 Date: 2020-05-01 Ontario Superior Court of Justice

Between: Johannah Nhau, Applicant — and — Esosa Obahiagbon, Respondent

Counsel: Self-represented applicant Robyn Switzer, counsel for the respondent

In Writing: May 1, 2020

Timms J.

Endorsement

[1] The respondent has brought a 14B motion seeking to expand his access to the child Soleil Sade Skye Nhau, (“child”) born October 19, 2018, from every Sunday from 8:00 am to 12:00 noon, and every Tuesday from 8:00 am to 10:00 am, to every Sunday from 8:00 am to 6:00 pm on Monday. The order providing for such access was that of Scott J. of this court on September 25, 2019. As well, the respondent seeks an order staying my costs order made against him on December 9, 2019. His position is that these are urgent matters pursuant to the protocol governing such motions here in Central East Region and elsewhere in the Province.

[2] The applicant has filed reply material. She argues that neither motion is in the least urgent. She also argues that since the respondent has not paid the costs ordered against him, he should not be allowed to bring his motions in any event. The applicant agrees that access should eventually be expanded to include overnights and she agrees that the child has become comfortable being in her father’s company. She would be agreeable to increasing the duration of the access on Sundays. She has also suggested that the Tuesday access be moved to Monday and that the respondent stay at a hotel here in Durham Region instead of travelling back and forth from Brampton where he resides.

[3] Patently, the staying costs order that I made against the respondent on December 9, 2019, does not fall within the definition of that which is urgent. The respondent has provided no reasons at all why my order should be stayed except that he has appealed my order to the Divisional Court. I expect that he meant to say that he had sought leave to do so. As far as I am aware, no such leave has been granted. That part of the respondent’s motion is hereby dismissed.

[4] The respondent now exercises access twice a week. He argues that it would be in the child’s best interest to move to overnight access and therefore it is axiomatic that there is urgency. For her part, the applicant argues that there is no urgency and that it is clearly not in the child’s best interest to move from one three-hour visit and one four-hour visit, to a complete overnight. She offers to maintain his three-hour visit and to increase his other one to six hours. This situation is clearly unlike almost all “urgent” motions brought over the past month or so as a result of the Covid 19 Virus (“virus”) pandemic. There has not been a refusal by one party to comply with an outstanding order due to the virus, neither has there been a motion brought to restrict or eliminate access due to the virus.

[5] In his affidavit in support of his motion, the respondent has referenced some cases dealing with what has been determined to be urgent since the onset of the Covid 19 Virus (“virus”) pandemic: Ribeiro v Wright, 2020 ONSC 1829, and Thomas v. Wohleber, 2020 ONSC 1965. The very first point made by Kurz J. in paragraph 38 of Thomas is that “the concern must be immediate; that it is one that cannot await resolution at a later date.” While it might seem at first blush that this statement works against the respondent, in my opinion it favours his position, at least to the extent that the court should consider what is in the child’s best interest now and in the fairly immediate future. I appreciate that not everyone will agree with my determination as to this matter qualifying as urgent. In my view, it so qualifies.

[6] The child was not quite a year old when Scott J. made her order. She is now seven months older. In the ordinary course of events, the parties would have proceeded with their trial management conference on April 20, 2020, and if the matter had not settled, then there would likely have been a trial set in May 2020. As of now, the May trial sittings have been cancelled and nothing has been scheduled before the beginning of June 2020. Whether the court actually resumes sitting this June is very much open to question. One can only guess when the next trial sittings will occur, but one taking place before this coming fall seems extremely unlikely. It could even be later. In either event, Scott J.’s order will be a year or more old. More importantly, the child will almost certainly be at least two years old before this case comes to trial. The differences between a one-year old child and a two-year old child are very significant. Based on my judicial experience of almost 40 years now and my observations as a human being, I am taking judicial notice of that.

[7] The court has now received a plethora of material from both sides, including a lengthy reply affidavit filed by the respondent this morning. Much of it is irrelevant to the issues to be decided. I feel nonetheless that I have sufficient material to make a decision. I am today ordering that the respondent’s access be increased as follows:

• Starting with this coming Sunday, May 3, 2020, the access is expanded to seven hours – from 8:00 am to 3:00 pm. The Tuesday access will remain as is.
• Starting Sunday, July 6, 2020, the Sunday access is expanded to nine hours – from 8:00 am to 5:00 pm. The Tuesday access will remain as is.
• Starting Sunday, September 7, 2020, the Sunday access is expanded to eleven hours – from 8:00 am to 7:00 pm. The Tuesday access will remain as is; however, the parties themselves might consider changing the Tuesday access to another day and time.

[8] I will not make an order for overnight access now. One hopes that my order today will provide for a successful transition to that and if it does not, then that the courts will be fully open for business by November 2020, when the parties have experienced six further months of expanded access.

[9] There are one or two virus-related aspects of this case which have received secondary mention from both sides. The respondent argues that giving him longer periods of time eliminates the necessity of remaining in Durham Region with the child and possibly exposing her to the virus here in a public place, keeping in mind that public playgrounds and similar facilities are currently closed. If he were to have more time, it would facilitate taking the child to his home, which he says is virus-free. If he availed himself of the applicant’s offer to stay overnight in a hotel in Durham Region so that he could have his access on back to back days, that could well serve to unnecessarily expose him, and therefore the child, to the virus. There is some logic to both of those arguments.

[10] The other virus-related matter is the fact that the respondent works as a registered practical nurse. The applicant alleges that he works in more than one facility and has expressed concerns about that. However, as I set out above, she is not seeking to eliminate the respondent’s access nor is she opposed to expanding it. The only inference I can draw from that is that the applicant is satisfied that the respondent is taking the necessary steps to prevent getting infected with the virus and passing it on to the child.

[11] If the respondent is working in more than one facility, then he would be breaching the Ontario regulation issued some weeks ago that prohibited that. As part of my order today, I am ordering that the respondent comply with any regulations issued by the Government of Ontario or any Regional or Municipal Health Authority relating to his employment or that in any way are designed to prevent the spread of the virus.

[12] I have decided that there will be no order as to costs. I have dismissed the respondent’s motion regarding staying my earlier costs order. I have modified the current access order but not as either party wished.

Date Released: May 1, 2020