Court File and Parties
COURT FILE NO.: 1456/19 DATE: 2020-05-07 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher Johnson, Applicant AND: Kaylin Johnson, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Ms. N. Matthews, Counsel, for the Applicant Ms. K. Cowan, Counsel, for the Respondent
HEARD: In Chambers – Triage Endorsement
Endorsement
[1] 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 Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[2] For the moment, the court is prioritizing “urgent” matters. However, with the passage of time the court has been able to gradually increase the services available during the COVID-19 suspension, as set out in the following documents which are available online:
a. April 2, 2020 Supplemental Notice to the Profession b. April 7, 2020 Protocol Regarding Family and Child Protection Matters in Central South Region c. April 28, 2020 Notice to the Profession in Central South Region
[3] This motion was referred to me as Triage Judge for a preliminary determination of urgency and of how this matter should proceed. Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself.
[4] Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.
[5] I have received and reviewed the following materials filed today on behalf the Applicant mother:
a. Notice of Motion dated May 7, 2020. b. Mother’s Affidavit dated May 7, 2020. c. Affidavit of Service dated May 7, 2020 indicating that these documents were emailed and faxed to the Respondent father’s lawyer at 9:23 a.m. today.
[6] Obviously, the father hasn’t had a chance to respond to these materials.
[7] I have some familiarity with this file. On January 16, 2020 I made an order based upon minutes of settlement. That order included both final and temporary terms.
a. The final terms included: i. Custody of the now six year old daughter to the mother. ii. Father entitled to communicate with and receive information from third party service providers involved with the child. iii. Mother to keep father updated as to third party service providers. b. The temporary terms included: i. Father has access alternate weekends Saturdays at 10:00 a.m. to Sunday at 5:00 p.m.; and each Thursday from after school until 6:30 p.m. ii. Saturday pickups are at end of child’s horseback riding lesson. Thursday pickups are from school. All drop-offs are at mother’s home. iii. (There are additional child support provisions irrelevant to todays’ motion.)
[8] The mother has now brought a motion seeking to suspend the father’s “in person time sharing”. She proposes that he have hour-long video contact with the child three times a week using Skype, Facetime or Zoom.
[9] The mother’s request is based on her concern that the father is not taking appropriate COVID-19 safety precautions. She feels this is putting the health of the child and other persons in jeopardy. Her specific allegations are set out in paragraphs 9 and 10 of her affidavit:
- On April 19th, when K. (the child) returned home from a visit with the Applicant, K. reported that the day before she visited her paternal grandmother and had a tea party and lunch. (The Applicant) does not live with his mother. K. said that they played for quite some time while sharing hugs and kisses. Therefore, she was not protected with social distancing. I emailed the Applicant about this incident and my concerns and he merely responded ‘Noted. Thanks for your concern’.
- I sent K. for her next weekend visit with the Applicant on May 2nd, 2020. When the child returned home on May 3, 2020 she advised me that her father had organized a birthday party for her and that her father, his fiancée, her children and her grandfather and her grandfather’s girlfriend were all present. They also gave each other hugs and kisses. The child reported that her father told her that he did not care if her mother was mad about this. Some of these people do not normally reside in the same home with the Applicant.
[10] The mother outlines other reasons she is concerned.
a. She says the child has asthma. She makes no specific allegation that the father has ever failed to properly address the asthma or any other health issue for the child. She does not allege that the asthma has ever been aggravated during the child’s times with her father. The child’s asthma was known when the parties consented to the existing order. b. The mother says she and the child live with her elderly parents, and they cannot risk being exposed to the COVID-19 virus. She does not address the possibility of an inconsistency in saying the child should live with one set of grandparents, but the child shouldn’t have a tea party or birthday party involving other grandparents or extended family. The mother makes no specific allegation that any of the extended family in the father’s household represent a specific COVID-19 risk. c. Unrelated to COVID-19, the mother says on March 6, 2020 the father was reckless when he transported four children in the back of his vehicle that is only meant for three passengers. She acknowledges that the child K. was in a car seat. She does not allege the father jeopardized K.’s safety. But she says there were too many children in the back seat and one child was not in a car seat. She cites this as an example that the father does not take safety seriously. To my knowledge this is the only time the mother has made such an allegation since the parties separated in 2014.
[11] These are the only concerns raised by the mother.
a. She does not allege any other incident or behaviour – ever – where the father hasn’t properly protected the child’s safety. b. She does not allege anything about his lifestyle or behaviour generally which would cause the court to worry that he is an irresponsible parent. c. She has nothing bad to say about the quality of the father’s relationship with the child. d. She knew when she consented to the January 16, 2020 access order that the father was living with his fiancé. She makes no allegation that there is any specific problem or concern relating to the fiancé or her family. e. She does not suggest that access has not been regular or beneficial for the child. To the contrary she appears to acknowledge that the child enjoys going for visits and has a good relationship with the father. f. She does not address the emotional impact on the child, if in-person contact were to be suddenly – and indefinitely – suspended, as she requests. g. How is a video conference a substitute for a six year old spending a weekend with her dad?
[12] Let’s step back, people.
[13] We’re all worried about COVID-19.
[14] We’re all committed to children’s safety. Parents are committed to their own children’s safety. The courts are committed to all children’s safety.
[15] We’re all stressed and confused.
[16] And it doesn’t help that from week to week we are receiving constantly evolving public health recommendations about what we should and shouldn’t do.
[17] We went from “Don’t panic, it’s under control” in February, to “Shut everything down and stay home if you can” in March. And as I type this, Premier Doug Ford is now talking about reopening some retail stores next week and telling families it will be ok to step outside a bit for the upcoming Victoria Day weekend.
[18] There is absolutely no doubt that COVID-19 is a life-threatening pandemic. We all have to take it very seriously. We have to protect one another. And we especially have to protect the vulnerable: children and the elderly.
[19] Recommendations for “social distancing” and “social isolation” have been clearly articulated and still apply. They’re common sense and relatively easy to comply with.
[20] But beyond that, we’re inviting trouble if we pretend that there is a single, one-size-fits-all solution for how separated parents should raise children during this incredibly complicated COVID-19 crisis.
[21] And we’re inviting even bigger trouble if we allow separated parents in high conflict disputes to start imposing their own rules on their estranged partner.
[22] The mother now wants to cut off in-person access completely.
a. She doesn’t seek a less restrictive variation of the order she recently consented to. b. She doesn’t propose any number of additional terms which might enhance safety while still promoting meaningful timesharing. c. For example, if she’s worried about the child being hugged by family members, she could have brought a motion seeking a restriction that the child not be hugged by family members. d. If there are specific concerns, the mother could have proposed specific solutions. e. But instead, she immediately picked the nuclear option: Cut off access completely.
[23] That’s not a helpful approach. And it’s certainly not what this court had in mind when it stated in Ribeiro v. Wright, 2020 ONSC 1829
We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.
[24] To her credit, prior to commencing this motion the mother sent the father an e-mail on April 20, 2020 expressing her concern about the child’s participation in the tea party.
a. Quite reasonably, in her e-mail the mother stated: “…please for the time being, limit her interaction with others while she is with you.” b. That was a very reasonable request. c. The father should have responded with more than “Noted. Thanks for your concerns.”
[25] So how did we suddenly escalate from “please limit her interaction with others” to “you can only see your daughter by video?”
[26] This six year old child needs parents who communicate better than this. And yet all too often in family court we see embittered parents who have only two modes of communication:
a. Provocative e-mails/texts b. Provocative court pleadings.
[27] Needlessly aggressive or opportunistic litigation has never been an impressive strategy in family court. And in COVID-19 times it is simply unacceptable.
[28] As Triage judge I have to decide whether the mother’s request to completely suspend the father’s access is urgent.
[29] It’s not.
a. The mother may have some valid questions or comments about decisions the father makes during his time with the child. b. Similarly, the father may have his own questions or comments about the mother’s parenting. c. Both of these parents have an obligation to communicate and to respond in good faith to one another’s inquiries and concerns. d. But none of the mother’s COVID-19 related allegations nearly rise to the level of establishing that the father is being irresponsible or unsafe. e. Apart from the mother’s unrelated allegation that two months ago there was a single time when the father did not ensure car-seat safety in relation to another child, there is nothing in the mother’s materials to suggest that the father is not a loving, caring, responsible, law-abiding person.
[30] Once the court concludes that both parties fall into the category of “loving, caring, responsible, safety-conscious parents”, it is unnecessary – and inappropriate – for judges to conduct a microscopic analysis of every single decision each parent makes during their time with a child.
a. During COVID-19, daily life for separated parents has become exponentially more complicated, entailing many new responsibilities and countless judgment calls. b. Parents have to think about and agonize over activities and interactions previously regarded as routine and benign. c. They have to stop doing certain things. d. They have to do other things differently and more safely. e. Parents have to provide children with as normal a life as possible in abnormal times. f. If parenting standards demonstrably fall below a certain threshold, the court will have no hesitation to intervene. g. But once parental insight, trustworthiness and devotion have been firmly established, we need to step back a bit and let parents make some of the tough day-to-day decisions on their own.
[31] The mother’s motion is dismissed, without prejudice to the matter being returned if more problems arise. I hope that doesn’t happen.
[32] If either party brings a further motion, their materials should identify:
a. Out of court efforts the parties engaged in to communicate and attempt to resolve parenting issues. These efforts should include things like written exchanges between the parties; written exchanges between counsel; exploration of meetings between the parties (with or without counsel, and subject to the comfort level of each party to participate); exploration of alternative dispute resolution options such as mediation, counselling or a parenting co-ordinator. b. Detailed proposals which each party is advancing to address specific concerns, in a manner which would be least disruptive to the status quo and meaningful timesharing while still ensuring the safety of the child and each household.
[33] As Triage judge it would have been just as easy for me to say: “Mom says there’s a problem -- let’s give them a hearing and they can sort it out.”
a. But every time high conflict parents return to court with a fresh proceeding, it re-opens old wounds. b. It’s like a fresh declaration of war which poisons home environments and spoils children’s lives. c. Many parents have come to regard family court as an inevitable destination, as opposed to a place of last resort. d. We have to change this mind-set. e. Judges don’t want to be erroneously perceived as dismissive or disinterested. But sometimes we have to tell both parties: Go home and be more sensible.