Court File and Parties
Superior Court of Justice - Ontario
Re: Tina McMurray, Applicant And: Gordon McMurray, Respondent
Before: Justice J.R. Sproat
Counsel: Ms. L. MacIntosh, for the Applicant Mr. W. Humphrey, for the Respondent
Heard: May 11, 2020
Endorsement
[1] This motion is concerned with whether Mr. McMurray should have in-person access to his two daughters, ages 3 and 4.
[2] The parties entered into Minutes of Settlement dated December 13, 2019 wherein it was agreed that the primary residence would be with Ms. McMurray. The Minutes contemplated that Mr. McMurray would have alternate weekend overnight access starting in March 2020 as long as he was consistent in exercising the access specified from December to February. It was common ground on the motion that he did consistently exercise access during this period.
[3] Mr. McMurray had weekend access 9:00 a.m. to 7:00 p.m. on March 15 and 16, 2020. Ms. McMurray then took the position that there should be no further in-person access having regard to COVID-19. Her primary concern was that Mr. McMurray was living in a house with his parents and his brother Adam who is a long-distance truck driver who does weekly runs into the United States.
[4] Adam filed an affidavit. His company has a COVID-19 protocol in place. When he arrives for a pick up and drop off, he receives a cell call indicating when he can bring in his truck. Almost all shipping and receiving personnel wear masks and gloves. He stays in his truck more often than the normal practice and if he has to get out he stays 6 – 8 feet away from anyone. He orders take out food that he eats in the truck. At truck stops he only leaves the truck to use a washroom and after that he thoroughly washes his hands.
[5] Upon arriving home he takes off all his clothes and has them washed. He has a bath and then disinfects the bathtub. Mr. McMurray disinfects any surfaces that he may have touched while Adam is bathing.
[6] In Ribeiro v. Wright, 2020 ONSC 1829 Justice Pazaratz stated:
None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
In most situations there should be a presumption 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.
In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
[7] Ms. MacIntosh submitted that under public health guidelines Mr. McMurray and his parents should be self-isolating, and so not leaving their house, because they are in close contact with Adam who has been to the United States. Ms. MacIntosh acknowledged she could not find a document that said this although she recollected this advice being given in March.
[8] The Public Health Agency of Canada news release on March 25, 2020 makes it clear that Adam, as a truck driver providing an essential service, is not required to self-isolate upon returning to Canada. Given that fact it does not make sense to me that Adam would be permitted to be in the community while all members of his household would be forced into isolation. Such isolation would extend for months on end as he returns to the household weekly. There must be thousands, if not tens of thousands, of Canadian truck drivers that travel to the United States regularly. If there was any intent that their household members stay in isolation indefinitely I would expect this to be clearly stated in a published form.
[9] I recognize that this is an unprecedented time that presents great difficulty, particularly for the parents of young children. I accept that Ms. McMurray is sincerely concerned for the wellbeing of the two girls. I have to consider, however, that their wellbeing is also being adversely affected by being physically estranged from Mr. McMurray for the past two months. Given that there is no immediate prospect of a change in travel restrictions to the United States this estrangement would likely continue for many more months.
[10] I appreciate that some front-line workers, whether that be in health care or the retail sector, have isolated themselves from their family. Some have not. Reasonable people can differ as to the precautions to be taken.
[11] Given the protocols and practices in place as described in Adam’s evidence, I think his risk of contracting COVID-19 is probably less than many members of the community such as retail employees. While those employees endeavour to physically distance themselves many of them are in the same space as tens, or hundreds, of customers on a daily basis. It is a matter of common sense and experience that staff and customers sometimes cannot avoid passing within six feet of each other.
[12] There is no suggestion that the children or Ms. McMurray have any particular vulnerability. Mr. McMurray and members of his immediate household are following public health guidelines.
[13] I, therefore, conclude that the interests of the children in having in-person contact with Mr. McMurray should prevail. As such, Mr. McMurray shall have access on alternating weekends from 10:00 a.m. Saturday to 6:00 p.m. Sunday. This access shall commence Saturday, May 16, 2020.
[14] If costs cannot be agreed Mr. Humphrey shall serve and file his cost submissions by May 18, 2020. Ms. MacIntosh shall respond within 7 days thereafter. Any reply within 5 days thereafter.