Court File and Parties

COURT FILE NO.: 4680/15 DATE: 2020-05-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kelli-Lyn Wallegham, Applicant AND: Kevin James Spigelski, Respondent

BEFORE: The Honourable Madam Justice M. McLaren

COUNSEL: Ms. K. Junger, Counsel, for the Applicant Mr. J. Mountford, Counsel, for the Respondent

HEARD: May 5, 2020 – by teleconference

Addendum to Endorsement of May 8, 2020

Final Order to Issue at paragraph 4 should read as follows:

4. The motion for a finding of contempt is dismissed.

Released: May 11, 2020

Endorsement

[1] Motions were argued in this matter by teleconference on May 5th, 2020.

[2] For ease of reference I will refer to the Applicant as the Mother and the Respondent as the Father.

[3] The background is as follows:

i. The parties have a child together, a boy named Zachary born on January 9th, 2015.

ii. A final order was made on consent by Justice Whitten on July 21st, 2016. Pursuant to the terms of that order, the parties share joint custody of Zachary.

iii. The Father has Zachary in his care on:

a) Alternate weekends from Friday at 6:00 p.m. to Sunday at 6:15 p.m. or to the Monday if it is a statutory weekend.

b) Alternating Wednesdays before a non-access weekend from 6:00 p.m. to Thursday at 8:30 a.m.

c) Specified holiday time.

[4] The Father has brought a motion for leave to proceed on an urgent basis and enforcement of the existing time sharing arrangement.

[5] The Father had the care of Zachary for the first half of March break of the year and he has not had him since. The Mother informed him that she would be self isolating with the child and did not think the Father should have his regular access on his next time. The Father said he understood and was willing to let two weeks go by. In a text exchange on March 30th, 2020, the Father told the Mother that the two week period was over and he wanted to have his son in his care. The Mother told him that Zachary would not be going due to the COVID-19 crisis and the fact that Zachary had compromised health, in that he as asthma.

[6] Initially the Father understood from the child’s doctor that Zachary was at higher risk of contracting COVID-19 and he agreed to forgo physical access. He referred to a letter from Dr. Andrus dated April 6th, 2020 where strict social distancing was recommended.

[7] In an addendum dated April 20th, 2020 Dr. Andrus added the following:

“By strict social isolation I mean contact restricted to custodial parents and those residing with them, while avoiding contact with unnecessary household visitor and unnecessary excursions to public places.

[8] He provided an excerpt from a medical journal which said that patients with chronic respiratory disease including asthma are not at more risk of developing COVID-19.

[9] Based on the follow up from Dr. Andrus and his own research, the Father felt that his access should continue in accordance with the existing order, but the Mother does not agree.

[10] The Father is a plumber who goes out to work as he is considered an essential service worker. He says he keeps Clorox wipes in his truck and wears “6 ml thick gorilla rubber gloves” when working and he disposes of them. He also has an N95 mask on while working and takes disinfecting sprays into the work location. This equipment is all provided by his employer. He disinfects his hands after every job. He wears a company uniform to work and washes it when he returns home, and has a shower. He says he drives alone in his truck and keeps a six foot distance from customers.

[11] We heard that the Father and his partner practice all the government guidelines for pandemic protection. He and his partner, Nicole, have a six month old boy together and Nicole has an 11 year old girl, Shyanne, from a previous marriage who lives with them and who goes to her father’s home for visits. The Father said that Nicole has had mature discussions with her 11 year old daughter’s father and she is satisfied that he is taking the necessary precautions.

[12] The Father acknowledged being in a grocery store with Zachary on March 16, 2020 but said that the social isolation rules were not in place then. He said he did wash his hands and Zachary’s hands upon their return and he has not taken the child to a store since.

[13] It is the Father’s view that the Mother is trying to thwart his access as she has called the CCAS with false allegations in the past. He said that he has a close relationship with Zachary, and that Zachary could be harmed by this long absence of physical contact.

[14] The Mother brought a cross-motion to have the Father’s motion dismissed and to have the Respondent’s in person access suspended until the social distancing and regulations for COVID-19 are relaxed.

[15] She described her own routine. Her groceries are picked up and she does not see friends and family. She does not go out to work. No one else resides with her other than Zachary.

[16] She said that the Father agreed to follow social distancing rules when they spoke on March 13th, 2020 but then he took Zachary to a grocery store on March 16th. She believes he would have known, or should have known, about the social distance protocols in place by March 16th. She attached a copy of an article from the Windsor area dated March 15th, which she believed was representative of the province. It gave recommendations from the province on social distancing and other things.

[17] The Mother denied that she is trying to thwart access and said that she did not call the CCAS in the past and that the Society investigated the Father but reinstated his access. It is unclear when this CCAS involvement was but it seems that Zachary was a baby.

[18] The Mother is concerned about the fact that the Father is in and out of people’s homes during the work day and he could contract the virus.

[19] She said that when she asked the Father on March 18th to refrain from taking Zachary to other stores he told her in front of Zachary “to piss up a rope.”

[20] The Mother was concerned that the Father referred to the two week isolation from Zachary that he agreed to, as “a kind gesture” in a text message. He then said “it’s sad you find any way you can to pull stupid crap. You should be ashamed of yourself. I will be picking him up Wednesday for my access.”

[21] The Mother’s point was that the two week isolation was not a “kind gesture.” It was about their son’s health.

[22] The Mother believes she heard a friend of Shyanne’s in the background once when Zachary was speaking to the Father. This shows that he is not practicing proper social isolation in the Mother’s view. This call was on March 27, 2020.

[23] The Mother says the Father is not isolating because he is still working and he allowed a friend of Shyanne to be in the home.

[24] The Mother asked Dr. Andrus for further clarification. He said in a letter dated April 29, 2020 that when he added the addendum dated April 20, 2020, it was not to change his position. It was just to say that the expression “strict social isolation” did not mean no physical contact with his father.

[25] He further commented that it may be true that asthmatics are less likely to suffer from COVID-19, because the treatment for asthma may have a preventative effect. However, he added, the bad news is that while those with respiratory disease are possibly less likely to contract COVID-19, they are more likely to die from it.

[26] The Mother added her concern that the Father has private customers as a plumber in addition to his work as an employee and he only mentioned protocols in his work as an employee.

[27] The Mother was also concerned about the fact that the Father took Zachary to the store with him on March 16th, 2020 because Nicole was not able to look after him because she was visiting family. She believes he has not been truthful. He said he would not go to a public place with Zachary prior to March 16th, 2020 and he did. He did not deny joking that he was taking Zachary to China or telling the Mother to “piss up a rope.” She added that he must have known about protocols regarding the grocery store on March 16th. It is her opinion that the Father is using this situation to change custody. One of his claims was a request for timelines to be set for a Motion to Change with the Father claiming sole custody and primary residence.

[28] The Father filed a reply affidavit. Counsel for the Mother asked me to strike 4 paragraphs. I will strike his paragraphs 6 and 7 as requested because they raise new evidence. Paragraph 5 is in response to her paragraph 9 and is acceptable. Paragraph 8 is in reply to her paragraph 25 and is acceptable.

[29] The Father pointed out in his reply affidavit that he follows all COVID-19 protocols in his private business as he does when working for an employer. He also pointed out that Shyanne’s father does not work outside of his home and that Nicole is satisfied, after significant discussions that he is following necessary protocols. He believes that Nicole, who he has been with over four years, would not want to put any of the children at risk.

[30] Also in reply, the Father said that it was Nicole the Mother heard in the background, and not her niece Alyssa. The Father believes that Zachary has bonded with his step sister, Shyanne, and his new brother, Logan.

[31] As a result of COVID-19 the regular operations of this court are suspended. The parties were asked to demonstrate that a motion is urgent before proceeding further in accordance with a Notice to the Profession dated April 2nd, 2020. On April 28th, 2020, Justice Pazaratz dealt with this matter as the triage judge. He only had the Father’s material and deemed the matter to be potentially urgent as a long standing time-sharing arrangement had been suspended. Deadlines were given for filing responding and reply material.

[32] Justice Pazaratz included, in the list of things that I may deal with the following in paragraph 12 (c):

“The judge dealing with the matter will make a formal determination as to whether the materials file – and any responding materials – raise any issues which meet the threshold of being urgent”, as required in the Notice to the Profession. If urgency has been established, the Judge will make the necessary orders.”

[33] Given that the Father’s in person access has been denied, and there appears to be no chance of the parties resolving this issue, I am of the view that this matter is urgent. Zachary has not seen his father in over seven weeks and he is only five years old. Some judicial intervention is needed.

[34] There seems to be some animosity between the parties as they both mentioned previous grievances. The Father has not helped the situation by making a sarcastic comment about taking Zachary to China or telling the Mother to “piss up a rope.” He did not deny making these comments and these are the types of remarks that exacerbate a situation. However, I have considered the evidence and the submissions and I am of the view that the Father’s parenting time should remain intact. My reasons are as follows:

a) The Father has given a detailed description of his workday and the precautions he takes. This includes rubber gloves, an N95 mask, frequent cleaning and handwashing, and staying at least six feet away from customers. He said that he takes the same precautions for private clients.

b) If the parties were still together, the Father would still be going to work to earn a living in order to support Zachary. He pays child support and the fact that he goes out the door to work, and is considered an essential service, should not deprive him of his parent time when he has taken the precautions set out above.

c) It was inappropriate of the Father to take Zachary to the grocery store on March 16th, 2020. However, he said it has not happened since and he was careful while there.

d) I cannot test credibility as to who the Mother heard in the background when she was listening to a telephone conversation between Zachary and the Father. It may have been Nicole as the Father said. In any event, he has said that other people do not come to the house and that he and Nicole are strictly following the government social distancing requirements. There is no evidence that he has not been, other than a trip to a grocery store on March 16th when protocols were new, and a belief that a girl may have been in the home on March 27, 2020 which was denied.

e) Zachary has a relationship with everyone in the Father’s home. I considered overnight weekend time to take place on different weekends than Shyanne’s weekends, but I did not know where she would be on the Wednesday nights and this might be difficult for Zachary.

f) The Mother has asked that the Father’s in person access be suspended “until social distancing and regulations for COVID-19 are relaxed.” This could be months. None of us know what will happen. I doubt the parties would agree on when that time is. What does “until the regulations are relaxed” mean? If this is a period of many months, that could be hard for a five year old boy. He would be limited to telephone calls, possible Facetime time and perhaps “driveway visits.” This would not be in his best interests. The Father needs to go out to work and he has said he is following all government recommendations. The trip to the grocery store was early on in this new era and I can order that is not be repeated.

g) The parties have both been in touch with Zachary’s doctor and he has not suggested that Zachary not go to his father’s home. He specifically said that contact should be restricted to the custodial parents and those residing with them. The doctor has told the parents that Zachary is not at greater risk of getting COVID-19 because he has asthma, but he is at risk of facing a much more serious illness if he contracted COVID-19. Nevertheless, he has not recommended a cancelation of visits. Hopefully, the new medical information obtained by the parents will be a reason for both of them to be especially strict at following the government regulations.

h) The Mother said in her affidavit that Zachary was diagnosed with Reactive Airways Disease in April 2016. This was also described as asthma. The final order of Justice Whitten was dated July 21, 2016, so the parties have been dealing with this issue since before the final order was made and for four years. I did not read anything in the Mother’s material that said that so far, the Respondent has not been capable of handling health issues for Zachary. The parties have a final order for joint custody which was made on consent. This should mean that both parents are capable of equally making decisions in the best interest of Zachary.

[35] For the above reasons, I believe that is in the best interest of Zachary that he continues to have his usual parenting time with his father, rather than wait for some indefinite time, perhaps months or maybe a year. No one knows how long it will be until the COVID-19 era is over, or until there are no social distancing concerns. It could be very confusing and upsetting for a child to lose all physical contact with his father and the members of his household.

[36] This of course is on the understanding that the Father will continue to follow government protocols. I will include a provision to this effect, but it will not be as detailed as the Mother requests. I will apply it to both households since there are two households.

[37] The Father asked for timelines to be set so he could start a Motion to Change. This is not an appropriate method of starting a Motion to Change custody and I am declining to assist in this way.

[38] The Father also asked for an order finding the Mother in contempt. This issue was not discussed during the argument. I do not find that at this time it meets the standard of a quasi-criminal finding of contempt. I cannot say that the Mother was trying to deliberately and wilfully disobey a court order. The first two weeks were on consent and both parties sought advice from the child’s doctor. I will not make a finding of contempt.

[39] The Father has asked for make up time. This is appropriate for any time missed after April 20, 2020 when Dr. Andrus gave his clarification.

[40] I will include a provision for costs in the event that the parties are unable to resolve this issue. I will give sufficient time so that they can attempt to settle this issue first.

Final Order to Issue

1. Urgency was established and leave has been granted for the motions to proceed.
2. Paragraphs 6 and 7 of the Respondent’s affidavit sworn on May 3, 2020 are struck.
3. The claim to set up timelines for a future Motion to Change is dismissed.
4. The motion for a finding of contempt is dismissed.
5. The timesharing provisions set out in the final order of Justice Whitten dated July 21, 2016 shall be complied with.
6. The Respondent shall have make up time for access he did not receive following April 20, 2020. The exact dates shall be forthwith arranged by the parties through counsel.
7. There is no order for police assistance at this time but this issue can be revisited if access is denied.
8. The Applicant’s motion to suspend the Respondent’s in person access is dismissed.
9. Both parties shall follow government protocols regarding social distancing and any advice given by the doctor of their son Zachary James Spigelski born January 9, 2015. They will forthwith furthermore advise one another if they have any concerns about COVID-19 symptoms in regard to anyone in their household, or anyone who may have direct or indirect contact with the child. The child shall not be brought to public places, unless for medical reasons, until such time as both parties agree it is safe to do so.
10. If the parties and counsel are unable to agree on how to handle the issue of costs, written submissions of no more than five pages plus any reasonable attachments may be served and filed electronically as follows:
    • Respondent (as moving party) by June 1st, 2020.
    • Applicant by June 15th, 2020.
    • Any Reply from the Respondent from June 29th, 2020.

Date: May 8, 2020