Court File and Parties

Court File No.: F1066/15 Date: May 7, 2020 Superior Court of Justice – Ontario Family Court

Re: Jacqueline Rose Robinson, applicant And: Rodney Dale Darrah, respondent

Before: TOBIN J.

Counsel: Toenie Hersch for the applicant Robert A. Haas for the respondent

Heard: May 5, 2020

Endorsement

1AS A RESULT OF COVID-19, which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020, this urgent motion was heard by teleconference. See: Notice to the Profession (March 15, 2020).

2The respondent (father) asks for an order requiring the applicant (mother) to resume his access to their five-year-old child in accordance with the order of Korpan J. dated February 19, 2020. He also asks for a police assist order to ensure compliance with that order.

3The central issue on this motion is whether the pre-existing conditions of the parties and child put the child at such risk that access should be suspended while the COVID-19 pandemic is ongoing.

The Facts

4The parties are the parents of April Rose Darrah, born April 1, 2015 (the child).

5The child has lived in the mother’s care since the parties separated in July 2015.

6Following a five-day trial held in February 2017 before Mitrow J., the mother was granted custody of the child. The father was granted access, which was to be gradually expanded to include alternate weekends and extended holiday and summer access.

7Sometime after the trial concluded, the mother refused to provide the child for access. The father brought a contempt motion. The mother brought a motion to change based on the father’s alleged neglect in caring for and meeting the child’s medical needs.

8On October 2, 2018, Mitrow J. made an order which provided that the father have two hours of supervised access with the child twice a week. This access took place at Merrymount from November 2018 until February 2020.

9On February 19, 2020, Korpan J. made a temporary order granting the father unsupervised access, gradually expanding the schedule to the one Mitrow J. ordered following the February 2017 trial. Under the February 19, 2020 order, the father was to have access every Wednesday from 3:30 p.m. until 6:00 p.m. For the first four weeks, access also occurred as ordered every Sunday from 10:00 a.m. until 3:00 p.m. in the community. Access for the next four weeks was to take place every Sunday from 10:00 a.m. until 6:00 p.m.

10Following the first Sunday access from 10:00 a.m. until 6:00 p.m., the COVID-19 pandemic arose. This COVID-19 pandemic caused the mother concern for the child’s and her own safety. The mother and child’s family doctor provided evidence about their respective underlying health problems that put them at risk if they contract the virus. The mother has severe insulin-dependent diabetes and a lung condition that is being investigated as possible COPD. The child, who was born prematurely, is susceptible to pneumonia. She had it twice in 2019.

11On March 23, 2020, the mother’s lawyer wrote to the father’s lawyer advising of these risk factors and the mother’s preference to suspend access while the COVID-19 emergency was ongoing. The letter also suggested that make-up access could be discussed once the emergency has passed.

12The father’s access to the child was stopped.

13The father’s lawyer responded to the mother’s lawyer by letter dated April 16, 2020. He wanted access to resume and suggested it be modified to reduce exchanges. He also set out the actions that the parties should observe to mitigate the risks of exposure. These included continuing social distancing, remaining at home unless necessary, observing all public safety directives, and using disinfectants where appropriate.

Legal Considerations

14The mother’s refusal to comply with Korpan J.’s order was an act of self-help. I agree with Doyle J., who stated in Skuce v. Skuce, 2020 ONSC 1881, at para. 36: “[t]he Court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.”

15While the court understands the mother’s concern for the safety of the child, the father, and herself, she should have brought the matter before the court rather than acting unilaterally.

16If the mother fears that the schedule of access as ordered may compromise the child’s wellbeing or health, the mother must provide the specifics and bring a motion to change: Ahmadi v. Kalashi, 2020 ONSC 2047, at paras. 7-8.

17When a court is asked to change an existing custody or access order, the threshold issue is to determine whether there has been a material change in circumstances: Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 29.

18If there has been a material change in circumstances, the court can change an existing order to address a specific issue while still maintaining the overall parenting scheme: Elaziz v. Wahba, 2017 ONCA 58, at para. 7.

19As the person seeking to restrict access, the mother has the onus of showing that, since Korpan J.’s order, a material change has occurred such that the best interests of the child requires a change in that order.

20In Ribeiro v. Wright, 2020 ONSC 1829, the court held that, in most situations, there should be a presumption that existing parenting arrangements continue. These existing parenting orders reflect “a determination that meaningful personal contact with both parents is in the best interests of the child” (at para. 7).

21Specifically, with respect to the ongoing pandemic, the court held, at para. 11, “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.”

22In these difficult and upsetting times, the child will benefit most from the love, connection, and support shared with both parents, as long as it is done safely: Lee v. Lee, 2020 ONSC 2044, at para. 19.

23When a court is asked to suspend in-person access, an assessment must be made of the medical vulnerability of the child and parents, the willingness and ability of the parents to follow COVID-19 health protocols, and the risks to the child in restricting their relationship with one parent: C.L.B. v. A.J.N., 2020 ONCJ 213.

24When medical evidence is provided in support of a suspension of in-person access, it is expected to include details of the child’s medical condition, the basis for any increased vulnerability to COVID-19, and specific recommendations about any required additional precautions: C.L.B., supra, at para. 31.

Application of Legal Considerations

A. The Threshold Issue: Has there been a material change in circumstances?

25The parties did not specifically address the issue of there being a material change in circumstances, however, both gave evidence of the changes that they would make to address access during the COVID-19 pandemic. The father suggests giving up access during the week and lengthening his weekend access to minimize transitions. The mother wants to suspend in-person access in favour of virtual access through FaceTime.

26I find that there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child because of the combination of the following:

a) the COVID-19 pandemic and necessary health protocols were not contemplated when Korpan J.’s order was made;

b) the pre-existing conditions of the mother, father, and child put all at an increased risk should they be infected with the virus; and

c) the mother has suspended an access schedule that was presumptively in the child’s best interests.

27Having found that the threshold required to change the access order has been met, the next issue is to determine what access order would now be in the child’s best interests.

B. Does the child’s medical condition require the suspension of in-person access?

28Dr. Rigby has been the mother’s family physician for approximately ten years and has always been the child’s. She last saw both the mother and child in December 2019. The mother had three telephone consultations with the doctor in April 2020.

29The doctor was most helpful in participating in the teleconference. She affirmed the evidence given in her affidavit, which included as an exhibit her medical letter of April 20, 2020, and answered questions put to her in cross-examination by the father’s lawyer.

30As described above, Dr. Rigby’s evidence is that the mother’s medical condition puts her at life-threatening risk if exposed to COVID-19 and that the child is susceptible to pneumonia.

31Based on these medical conditions, Dr. Rigby supported the mother’s decision to restrict access.

32Dr. Rigby did not address what steps might be taken to mitigate the risks to the child and mother.

33It does not appear that the mother sought advice from the doctor about what to do about access. She made her mind up before speaking with the doctor. I find the mother sought support from the doctor for her preference to cancel in-person access. Dr. Rigby provided that support based on the mother and child’s medical conditions. However, the doctor did not go any further. There was no consideration of what mitigation efforts would minimize the risk to both of them so that in-person access in some form, from which the child derives benefit, could continue.

34I find that the child’s medical condition alone does not support a suspension of in-person access with the father.

C. Compliance with COVID-19 Directives

35I am satisfied that both the mother and the father can and will be assiduous in complying with steps to mitigate risk to the child and themselves due to COVID-19.

36Both parents are aware of the child’s medical condition and the need to protect her from the virus. Both parents have pre-existing conditions. The evidence demonstrates that they have a heightened awareness of the necessity of taking appropriate measures in their respective households to deal with COVID-19: Chrisjohn v. Hillier, 2020 ONSC 2240, at para. 13.

37The father has taken a number of steps to deal with COVID-19:

• The father self-isolated for 14 days beginning at the end of March to make sure he was safe.
• The father has no current symptoms of COVID-19.
• The father lives alone.
• The father goes out only for necessities.
• The father practices social distancing when he does go out. When in a grocery store, he wipes down the shopping cart and basket handles. He has a list that allows him to get out of the store as quickly as possible. When he returns home, he takes his boots off at the door and sprays them with Lysol. He puts the grocery bags on the floor and wipes off each item with disinfectant wipes and washes off fresh vegetables with vinegar and water. When he is finished, he discards the grocery bags. He sprays the floor area with disinfectant where the grocery bags were. Finally, he takes a shower and changes his clothes and immediately washes the removed items of clothing.
• The father has not had any other persons enter his house in over a month.

38The father works seasonally from May to October at a local college, where he is primarily responsible for the HVAC system. When at work, he is usually alone and has little contact with others. He has his own office at work. At present, the college is closed to students. He can maintain proper social distancing. His work area is cleaned and disinfected daily.

39In addition to the father following public health directives, Korpan J. found that it was in the child’s best interests to have in-person access with the father. This court can infer from this that the father is a suitable person to have care of the child and the responsibility to keep her safe.

40The mother’s only reason for suspending in-person access was “due to the Covid crisis and health conditions of the child and her.”

41There are no concerns about the father being able to follow COVID-19 health protocols.

42I also take into account that, with proper compliance with public health directives, the mother’s concern for her risk of contracting the virus is addressed.

D. What access is now in the child’s best interests?

43It is in the child’s best interests to resume the graduated access ordered by Korpan J. on February 19, 2020, with modifications to take into account COVID-19 and the health conditions described above.

44The mid-week in-person access shall be suspended until further order of the court. This will reduce the number of access exchanges in the community. Instead, the father shall have a FaceTime access with the child two times each week as arranged through counsel. If the parties cannot agree, this access shall take place on Tuesdays and Thursdays each week at 5 p.m. As the child just turned five years old, the court recognizes that this contact will not be lengthy. However, it will afford the father with regularly scheduled contact. He can try to establish a routine with the child, for example, reading books with her.

45Weekend access shall resume in accordance with para. 1(b) of Korpan J.’s February 19, 2020 order, that is, for four consecutive Sundays from 10:00 a.m. until 6:00 p.m. starting May 17, 2020. Thereafter, weekend access shall take place as provided for in para. 1 of the February 19, 2020 order as follows:

“c. Thereafter for four visits, alternate weekends from Saturday at 10:00 a.m. until Sunday at 6:00 p.m.;

d. Thereafter, alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m.;

f. Commencing immediately following the last visit set out in subparagraph l(c) [this should be (d)] above the access ordered by Mr. Justice Mitrow in his order of March 3, 2017, paragraphs 3 and 4.”

46The weekend access is not to start on May 10, 2020 as it is Mother’s Day.

47Access shall continue in accordance with the existing order as long as “COVID-19 safety measures [are] meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc”: Ribeiro, supra, at para. 21.

48The access exchange provision of the existing order shall be suspended pending further order of the court. Access exchanges will take place at the mother’s residence and are to be facilitated by Amanda Darrah, the father’s adult daughter.

49Ms. Darrah shall be responsible for taking the child from and returning her to the mother’s residence. Ms. Darrah’s involvement is necessary because the father has an outstanding criminal charge against him. One of the terms to which he is subject prevents him from having any contact with the mother.

50Ms. Darrah attended the teleconference, was affirmed, and gave evidence. She has engaged in COVID-19 safety measures. These measures include self-isolating and not working outside of the home. Someone else does her grocery shopping. Her partner and their daughter live with her. They too have engaged in COVID-19 safety measures. Prior to the mother suspending the father’s access, Ms. Darrah facilitated the access exchanges. She would meet the father at the access exchange location, where she would guide the child to and from the mother. They will be able to keep a safe distance apart from one another. Ms. Darrah is to meticulously adhere to COVID-19 safety measures.

51The father asks for a police assist order to ensure compliance with the existing order. He claims the mother has interfered with his access rights in the past. The mother disputes this. On the evidence before me, I am not prepared to make the finding requested by the father.

52I also take into account that granting a police assist order at this time would not be in the child’s best interest. Such an order would no doubt cause upset for the child and risk exposure to the virus. The mother’s concerns regarding risk to the child during COVID-19 have been addressed in this endorsement and therefore there is little reason to expect non-compliance from her. If there is non-compliance, this matter can be brought before the court on short notice.

Order

53For these reasons, an order shall go as follows:

1. Commencing May 17, 2020, the respondent shall have access with the child in accordance with Korpan J.’s order dated February 19, 2020 at paragraphs 1(b), (c), (d), and (f), which provide as follows: (b) for four consecutive weeks thereafter, every Sunday from 10 a.m. to 6 p.m.; (c) thereafter four visits, alternate weekends from Saturday at 10 a.m. until Sunday at 6 p.m.; (d) thereafter, alternate weekends from Friday at 6 p.m. until Sunday at 6 p.m.; and (f) commencing immediately following the last visit as set out in 1[d] above, the access ordered by Justice Mitrow in his order of March 3, 2017, paragraphs 3 and 4.

2. The respondent shall have FaceTime access with the child two times each week, as arranged by them through counsel. If they are unable to agree, this FaceTime access shall take place on Tuesdays and Thursdays starting at 5:00 p.m.

3. In-person access exchanges shall take place at the mother’s residence and are to be facilitated by Amanda Darrah. Ms. Darrah shall be responsible for taking the child from and returning her to the mother’s residence at the beginning and end of each in-person access visit.

4. The father’s request for a police assist order is dismissed.

5. This endorsement is effective when signed. No formal order is required.

54The court acknowledges and respects the serious concerns both parents have for their child’s wellbeing and safety and the civil manner in which they dealt with this motion.