Court File and Parties
COURT FILE NO.: F311/20 DATE: May 13, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Matthew Edward Almeida, applicant AND: Taylor Marie Gerrits, respondent
BEFORE: MITROW J.
COUNSEL: Matthew Edward Almeida in person Stephanie Ouellette for Taylor Marie Gerrits
HEARD: May 6, 2020
Endorsement
Introduction
[1] The applicant, Matthew Edward Almeida (“Mr. Almeida”), and the respondent, Taylor Marie Gerrits (“Ms. Gerrits”), are the father and mother of Kamilla, age two (“the child”).
[2] Mr. Almeida brings this motion on an urgent basis, seeking parenting time with the child. He submits that Ms. Gerrits is denying access.
[3] This motion, which was heard by teleconference, was brought in accordance with the notice dated March 15, 2020 governing proceedings in this court during the shutdown of normal court operations as a result of COVID-19.
[4] I am satisfied that the current circumstances do create an urgency.
[5] In his motion, Mr. Almeida seeks numerous interim orders, 19 in total, almost all of which are not urgent.
[6] Mr. Almeida seeks interim custody and primary care of the child and submits that he should have equal parenting time with the child.
[7] Ms. Gerrits submits that Mr. Almeida should have access twice per week Tuesdays and Thursdays from 10 a.m. to 6 p.m., with no overnights at this time.
[8] For reasons that follow, Mr. Almeida shall have parenting time as set out in the order below, to include overnights and with the balance of his claims being dismissed.
Current Litigation
[9] The parties do not have a separation agreement or court order in relation to the child.
[10] Mr. Almeida issued an application in early April 2020 and brought his motion for interim relief at the same time.
[11] On the first return of the motion on April 21, Ms. Gerrits sought an adjournment to allow time to prepare material. The adjournment was granted. The motion was adjourned to May 6 for argument, but a further court date was set for April 27 to deal with access pending the adjournment. On that date, access was granted consisting of three videoconferences pending the hearing of the motion.
[12] Both parties filed various unsigned affidavits. The parties were affirmed and each party testified as to the truth of his or her respective unsigned affidavits.
[13] During the hearing of the motion, it became apparent that Ms. Gerrits had not received Mr. Almeida’s reply affidavit dated May 4. That affidavit was forwarded to Ms. Gerrits and her counsel during the hearing of the motion and an opportunity was given to Ms. Gerrits to consult privately with her counsel regarding that affidavit.
[14] When the motion resumed, Ms. Gerrits was content to proceed but sought leave, which was granted, to make submissions as to whether some portions of the applicant’s reply affidavit should be struck. Submissions from both parties were heard in regard to paragraphs 4, 5, 6, 7 and 11 of the applicant’s reply affidavit.
[15] I find as follows:
(a) paragraphs 4, 7 and 11 are not proper reply evidence and are struck;
(b) paragraph 5 is proper reply evidence because Mr. Almeida addresses steps he took to take the child to doctor’s appointments, in reply to Ms. Gerrits’ evidence, in her first affidavit at paragraph 2, that she has taken the child to all medical appointments;
(c) paragraph 6 is proper reply evidence because Mr. Almeida is identifying his concerns regarding a person proposed by Ms. Gerrits to facilitate access exchanges.
Background
[16] The parties separated in July 2019 after several years of cohabitation.
[17] Mr. Almeida has other children. He has three boys, ages 7, 8 and 11, with a previous partner. Mr. Almeida presently resides with his current partner and her two young children. According to Mr. Almeida, his three boys spend significant time with him.
[18] Ms. Gerrits’ evidence is that she denied in-person access to Mr. Almeida because of her concerns related to COVID-19. Ms. Gerrits was concerned about the lack of information regarding COVID-19 precautions being taken by Mr. Almeida, his current partner, the father of his current partner’s children and the mother of Mr. Almeida’s three eldest children.
[19] In his subsequent affidavits, Mr. Almeida addressed that issue. He deposed as to the current social distancing and other precautions that he and his current partner are taking. Mr. Almeida deposed further that neither himself, nor his current partner, nor his current partner’s children, nor his three eldest children, have ever had any specific symptoms relating to COVID-19. Also, it was Mr. Almeida’s evidence that his current partner is not working due to the closure of her place of employment as a result of COVID-19, and that the mother of his three oldest children does work but is taking all necessary precautions.
[20] Mr. Almeida deposed that he is self-employed but has minimal work currently. It was his evidence that he works from home where possible. His work includes the building and installation of custom glass cabinets and countertops. When Mr. Almeida does the installation, others are not present according to his evidence.
[21] Mr. Almeida’s evidence, as a whole, satisfies me that the child would not be at risk due to COVID-19 while in Mr. Almeida’s care. In any event, in her second affidavit, Ms. Gerrits proposed some in-person access as discussed earlier.
[22] Subsequent to separation and prior to March 2020, both parties agree that Mr. Almeida did have access to the child, including some overnights. However, Mr. Almeida’s evidence, unfortunately, is somewhat sparse as to the exact details of his access.
[23] Ms. Gerrits explains that, after separation in July 2019, that Mr. Almeida would have access about twice per week for a couple of hours. There was never a set schedule. Sometimes Mr. Almeida had overnight access.
[24] Ms. Gerrits adds that, between January 1, 2020 and mid-March 2020, that Mr. Almeida’s access also was sporadic and inconsistent. She asserts that his mother often watched the child during access. However, Ms. Gerrits does depose that Mr. Almeida had overnight access approximately once per week.
[25] Ms. Gerrits asserts clearly that she has always been the child’s primary caregiver.
[26] Mr. Almeida appears to corroborate Ms. Gerrits’ description of his access as being inconsistent, stating in his reply affidavit that “this is correct 100%” (paragraph 2).
[27] Mr. Almeida, in his affidavit material, simply asserts that a “50/50” parenting schedule would be in the child’s best interests.
[28] There is no specific challenge by Mr. Almeida to Ms. Gerrits’ evidence that she has been the child’s primary caregiver, although Mr. Almeida blames Ms. Gerrits for failing to commit to a regular schedule.
[29] In assessing the child’s best interests, I take into account that the child has been in Ms. Gerrits’ de facto primary care.
[30] Ms. Gerrits’ current situation is that she had been planning to attend college but that those plans have been delayed because of COVID-19.
[31] Although Ms. Gerrits raises a number of concerns opposing overnight access, I find her concerns to be unpersuasive. The order below provides for overnight access following a period of day visits. Mr. Almeida provided details as to the number of bedrooms and where all the children will be sleeping. There is no reason, in the child’s best interests, to deny overnight access.
[32] I find that it is in the child’s best interests to have the parenting time structured progressively. The order below is made on the premise that the child currently is not attending daycare because of the daycare’s closure due to COVID-19.
[33] It is not necessary, nor is it an urgent matter, to make the myriad of other orders sought by Mr. Almeida.
[34] The parties both confirm a volatile history towards each other. Ms. Gerrits has received a conditional discharge and is currently bound by a no-contact order regarding Mr. Almeida.
[35] Mr. Almeida is currently facing two charges, including an assault charge against Ms. Gerrits. Mr. Almeida has a no-contact order regarding Ms. Gerrits as set out in his recognizance.
[36] The order below requires Mr. Almeida’s mother (the child’s paternal grandmother), Laura MacNeil, to facilitate access exchanges. Both parties were agreeable to have the paternal grandmother facilitate access exchanges.
[37] Ms. Gerrits’ counsel may forward a draft order in Word format for digital signature.
Order
[38] I make the following interim order:
The applicant shall have interim parenting time with the child from 10 a.m. to 6 p.m. on Saturday, May 16, 2020 and on Sunday, May 17, 2020.
Thereafter, the applicant shall have interim parenting time with the child for three consecutive weeks from 10 a.m. to 6 p.m. each Wednesday commencing Wednesday, May 20, 2020 and for three consecutive Sundays from 10 a.m. to 6 p.m. commencing Sunday, May 24, 2020.
Thereafter, commencing the week starting Monday, June 8, 2020, the applicant shall have interim parenting time with the child as follows: (a) every Tuesday from 10 a.m. to 6 p.m. commencing Tuesday, June 9, 2020; (b) alternate Thursdays from 10 a.m. to 6 p.m. commencing Thursday, June 11, 2020; (c) alternate weekends from 10 a.m. Saturday to 6 p.m. Sunday commencing Saturday, June 20, 2020; and (d) after two overnight weekends, the parenting time on alternate weekends shall be from 6 p.m. Friday to 6 p.m. Sunday.
If the child returns to daycare, the parties shall cooperate in making any necessary adjustments to the applicant’s parenting time schedule.
All access exchanges shall be facilitated by the child’s paternal grandmother, Laura MacNeil, or such other person as may be agreed to by the parties. The pickup and drop off shall be at the respondent’s residence unless the parties agree otherwise.
The applicant shall have parenting time via videoconference at least twice per week, to be arranged between the parties.
The parties shall request the trial coordinator to schedule a case conference.
The applicant shall be the child’s primary caregiver during all his scheduled parenting time with the child.
Paragraphs 4, 7 and 11 of the applicant’s reply affidavit dated May 4, 2020, and affirmed on May 6, 2020, are struck.
All other claims made in the applicant’s motion are dismissed.
This order is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12.
The costs of the applicant’s motion are reserved to the judge who deals with the application on a final basis.
“Justice Victor Mitrow” Justice Victor Mitrow Date: May 13, 2020