COURT FILE NO.: FS-19-0095354 DATE: 20200513
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Raquelle Emilia Mascarenhas, Applicant AND: Shaun Budhai, Respondent
BEFORE: The Honourable Justice Van Melle
COUNSEL: Irina Davis, for the Applicant Vic Sehdev, for the Respondent
HEARD: April 27, 2020 (by Zoom)
Endorsement
[1] This motion has been brought pursuant to the protocol in place during the suspension of normal court operations due to the COVID-19 outbreak.
[2] On April 14, 2020 the Respondent father requested the hearing of an urgent motion. Regional Senior Justice Ricchetti reviewed the letter supporting the request and, based on the allegations in the letter, deemed the motion urgent.
[3] I heard the motion via Zoom on April 27, 2020. The parties and their lawyers were present. At the conclusion of the hearing, I asked the father for a supplemental affidavit describing the matrimonial home, the people who resided there with him and the steps that were being taken to keep everyone safe during this pandemic.
[4] In support of the motion, and in addition to counsels’ submissions during the hearing I reviewed the following materials:
Shaun Budhai:
- Letter of Urgency dated April 14, 2020
- Notice of Motion dated April 17, 2020
- Affidavits dated April 17, 2020, April 24, 2020 and May 4, 2020
- Factum
Raquelle Mascarenhas:
- Affidavits dated April 22, 2020 and April 22, 2020
[5] I also reviewed Justice Price’s January 13, 2020 Endorsement
[6] The father sent in a further affidavit dated May 12, 2020, however, I did not accept it as he did not have leave to file a further affidavit.
[7] In the motion before me, the respondent father asks for an order that he have access to the child of the marriage, Raphael, born May 4, 2019, every Wednesday from 2:00 p.m. to 8:00 p.m.; and every Saturday and Sunday from 10:00 a.m. to 8:00 p.m. He asks as well that commencing May 1, 2020 he have overnight access every Saturday from 11:00 a.m. to Sunday 11:00 a.m. He also wants the access exchange to take place at a police station. Although he appears to seek an order that the access can take place at the matrimonial home, (instead of his parent’s house) that request does not appear in the April 17, 2020 Notice of Motion. Despite that apparent oversight, I will address the location of access in this endorsement.
[8] By way of background the parties were married on July 23, 2016 after cohabiting for a period of time. They separated in November 2018. Raphael was born on May 4, 2019. The father was charged with assaulting the mother in December 2018 and charged with failing to comply with an undertaking in February 2019. The father denies the charges.
[9] The father says that his matter is urgent because the mother has thwarted any meaningful relationship and parenting time between him and Raphael. He also says that an increase in access and a move to overnight access is urgent.
[10] The parties attended a Case Conference with Justice Price on January 13, 2020 at which time Minutes of Settlement were entered into. Pursuant to those Minutes the father sees Raphael three times per week -- Tuesday and Sunday from 10:00 a.m. to 1:00 p.m. and Thursday from 5:00 p.m. to 8:00 p.m.
[11] The Minutes of Settlement stipulate that access take place at the father’s parents’ home.
[12] The father is exercising the access as set out in the Minutes of Settlement. There was one occasion where the mother withheld access but that occurred on March 16, 2020 after an access visit where Raphael was returned at 8:00 p.m. instead of 1:00 p.m. The mother acknowledged that access should not have been suspended and regular access was reinstated. The father acknowledges that the access is taking place.
[13] Despite being subject to bail conditions the father is personally attending and carrying out access exchanges at the applicant mother’s apartment building.
[14] The father acknowledges that despite the requirement that access take place at his parents’ home it is in fact taking place at the matrimonial home where the father resides with four other people. He says that one of the other people is his girlfriend and that he is social distancing from the other three people.
[15] Prior to determining the motion, I asked the father to provide an affidavit containing information about the people living with him in the matrimonial home. His affidavit in support of the motion did not contain this information due to his expressed concerns about their privacy, however these people live in the matrimonial home and as such the co-owner mother has the right to know who is living there and more importantly, when access takes place at the matrimonial home these are people who are present in the home during that time. Information as to their identity and background is crucial.
[16] On this motion, the father’s initial affidavit contained 145 pages of exhibits including 41 photographs. The mother’s reply affidavit contained 10 photographs. Despite my comments during the hearing of the motion that the photographs were unhelpful, there are more photographs (and videos) in the supplemental affidavits. In all the photographs the child is not even one year old. There is no reason for including all of these photographs. If the parties believe that photographic evidence is required one or two would have been representative of the point they were trying to make.
[17] The father’s affidavit also contained a document purporting to be a letter from a dietician (who has never met the child) setting out the fact that a child under one can have overnight visits with the father. The document is not in affidavit form and contains general literature about parenting during divorce, etc. It is not helpful. The father’s supplemental affidavit also has letters appended to his affidavit. The practice of appending letters to an affidavit in lieu of providing sworn affidavits is not to be encouraged. While I understand that given the safeguards in place during the COVID-19 pandemic, if the father felt it necessary to provide information from the other people living in the matrimonial home, rather than describing them in his own affidavit, he should have done so by way of affidavit from each of them.
[18] The mother asks that the father have a third party (not the father’s girlfriend) carry out or be present at access exchanges. This request is not unreasonable and indeed, the father’s current actions in attending for access exchanges on his own are contrary to his bail conditions. He has to abide by the bail conditions.
[19] As previously stated, the father has been seeing Raphael three times per week pursuant to a court order worked out with Justice Price at the case conference. The order contemplated a further motion being brought on behalf of the father for overnight access. Justice Price also made an order requesting the involvement of the Office of the Children’s Lawyer. I was advised that the parties are complying with the access as set out in the order. The father does bring the child back late on occasion. He is not complying with the requirement that the access take place at his parents’ home. I made it clear at the hearing that given the fact that both parties believe this to be a high conflict matter, the parties MUST comply with the parenting agreement including the times set out. The parties had agreed to expand the father’s access somewhat but when he overheld the child on one occasion those negotiations fell by the wayside.
[20] The motion to expand access is not urgent. The letter requesting the urgent motion misrepresented the situation by not setting out that regular access was in fact taking place.
[21] The letter in support of a motion based on urgency set out the following:
The relief sought above is urgent for many reasons. First the current order allows for access to take place in our client’s parents’ home. In [sic] client’s parents recently told him that he could no longer exercise access in/at their home. In addition, given the COVID-19 pandemic, is not in Raphi’s best interest that the access continues to take place at our client’s parents’ home because our client’s parents are elderly, and there are times when people who live with our client’s parents have been ill.
[22] The father’s letter seeking to have an urgent motion, is not evidence. The statements in the letter were not repeated nor were they corroborated in the father’s affidavits. The father does not set out a reason in his affidavits that access cannot take place in his parents’ home other than to say that he does not live there. He did not live at his parents’ home when the January 13, 2020 order was entered into. Other than the COVID-19 situation there has been no change. There is no admissible evidence before me on this motion setting out if and how COVID-19 has changed the father’s ability to exercise access at the previously agreed to location. His statement that the mother gave her implied consent to the access taking place at the matrimonial home does not change this. Regardless, the mother denies having given her consent, implied or otherwise.
[23] The father’s chief complaint appears to be that the mother would not agree to the parenting time that he was seeking. He wants maximum contact with his child. Under the protocol this is not urgent.
[24] Ribeiro v. Wright March 24, 2020 made clear that 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. In the present case the mother has not raised a failure to follow COVID-19 precautions as a reason to suspend access. She is not asking for a suspension at all, she just does not believe that it is in the child’s best interests at this time to go to the father overnight. That may or may not be true but a determination of that issue is not urgent. It appears that the parties have been working toward a gradual increase of the father’s time with Raphael and I would encourage the parties to continue these discussions.
[25] Raphael just turned one. Although the father included articles on parenting and letters supporting the ability of a one year old child to stay overnight with the non-custodial parent, this does not provide the court with information as to Raphael’s best interests. In determining whether or when overnight access for the father should be implemented, the overriding consideration will be Raphael’s best interests. Given the contradictory information in the affidavits, the best way to access this information is through the involvement of the Office of the Children’s Lawyer. Despite the order requesting the involvement of the Office of the Children’s Lawyer, neither party followed up with Justice Price to have him submit the order (which appears to have been overlooked). Hopefully this has now occurred. If the Office of the Children’s Lawyer turns down the request for involvement recourse might have to be had to a private assessment.
[26] The issue as to access exchanges is governed by the father’s bail conditions. I am satisfied that a party other than the father’s girlfriend should attend to pick up and return the child. If the father is successful in having his bail conditions amended in the criminal court, it would be prudent for him to show some sensitivity to the mother and not have his girlfriend present at the exchanges. The mother on the other hand, will have to get used to the idea that the father’s girlfriend is a part of Raphael’s life when he is in his father’s care.
[27] In the mother’s most recent affidavit she attaches a letter from Canada Revenue Agency advising her that someone else, presumably the father, was claiming child and family benefits for Raphael. In order to claim these benefits, one must be the primary caregiver which the father is not. Although this is not responsive to the supplemental affidavit that I required, it is telling about the father’s behaviour. I trust that this will be remedied forthwith.
[28] It appears from the materials filed on this motion, that both parties are accusing the other of being controlling and vindictive. It would be in Raphael’s best interests if instead of focusing on the perceived weaknesses of the other parent, they attempted, with counsel, to work out an arrangement that would truly be in Raphael’s best interests.
[29] The father’s motion is dismissed. I will entertain written submissions on costs limited to 2 pages double-spaced along with a Costs Outline and any applicable Offers to Settle. The mother is to serve and file her submissions within 7 days from today’s date. The father has 7 days to respond. There is no right of reply.
[30] In the circumstances of the COVID-19 pandemic, these Reasons are deemed to be an Order of the Court that is operative and enforceable from the time of their release without any need for a signed or entered, formal, typed Order.
Van Melle J.
DATE: May 13, 2020