Court File and Parties
COURT FILE NO.: FC-19-124 DATE: May 15, 2020 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEANINE MARY SILVA B. Fortino, for the Applicant Applicant
- and -
BRIAN SILVA C. Runco, for the Respondent Respondent
HEARD: May 12, 2020
Endorsement
THE HONOURABLE JUSTICE R. J. HARPER
Issues
[1] Whether the temporary Order of Justice Nightingale dated December 19, 2019 should be changed in order to account for events that have occurred since that date.
Background
[2] Jeanine Mary Silva (Jeanine) and Brian Silva (Brian) were married on October 6, 2006. They have two children from their marriage, Ava (9) and Ella (6).
[3] Jeanine and Brian separated on or about June 26, 2019. Jeanine stayed in the matrimonial home with the children. That home is located at 23 Douglas Drive, Caledonia, Ontario.
[4] Brian has been residing with his mother, at 180 Alderlea Drive, Mount Hope, Ontario.
[5] Brian was admitted to the psychiatric unit of St Joseph’s Hospital in Hamilton as in-patient August 31, 2019. At that time, he was presenting with paranoid thoughts. He felt that someone was going to kill him. Since on or about the date of separation he had been depressed and his feelings of paranoia increased. He was discharged from hospital on September 25, 2019. He has been followed in treatment as an outpatient by Dr. Bibr.
[6] Brian did not have access to his children from the date of his admission to hospital until the Order of Justice Nightingale of December 19, 2019.
The Order of Justice Nightingale Date December 19, 2019
[7] In addition to access over the 2019 Christmas holiday period, the Order of Justice Nightingale provided the following access:
Commencing December 19, 2019 and subject to the supervisors’ schedules, the Respondent father shall share time with the children as follows: a) Every Sunday, from 10 a.m. to 1 p.m. b) Every Tuesday from 5 p.m. until 7:30 p.m. d) Every Friday from 5 p.m. until 7:30 p.m.
The Respondent father’s time with the children shall be supervised by the paternal grandfather or his brother Jeff Silva, provided either Joey Raposo or Julie Raposo or Mary Raposo is also present. The visits shall take place in the matrimonial home and the applicant shall not be present. The visits may take place elsewhere if agreed to between the parties.
[8] This Order was made as a temporary order in accordance with the agreement of the parties.
[9] The above noted access with Brian and the children took place as set out in the above Order. However, Jeanine claims that Brian cancelled one visit with no prior warning and did not seek any make up time. On February 7, 2020, Jeanine, through her counsel, notified Brian’s lawyer that access would not take place on February 9th as the children would be attending a maternal family gathering. Despite Brian asking for make up access none was given.
[10] Both of the parties’ affidavits are fraught with disparaging allegations about the other that include making claims that each of them has anger control issues and are verbally and physically abusive to the other. According to both parties’ affidavit material, there was incident on February 16, 2020, after which Jeanine called the police. There were no charges laid as a result of that incident. This was the last time the children have seen their father.
[11] The version of events of past violence and anger issues are so diametrically opposed that it’s not possible to sort out the credibility issues at this stage of the proceedings. No findings of fact can be made on this conflicting evidence nor do any findings of fact need to be made. That will have to wait until the full scrutiny of a trial if that becomes necessary.
[12] What I can find as a fact is that the conflict between the Jeanine, Brian and their respective extended families are seen and most importantly felt by the children. The maternal grandmother is clearly aligned with her daughter. She is not a neutral observer capable of supervising access. The parental conflict is bordering on emotional abuse of these children and must stop.
[13] The paternal grandmother was agreed to be one of the supervisors and she has recently consented to be a part of Brian’s plan to expand his access to his mother’s home with a gradual increase from the present times that are set out in Justice Nightingale’s Order.
[14] This is opposed by Jeanine. She now claims that the paternal grandmother hardly knows her children. She asserts that the paternal grandmother was estranged from her son Brian for many years. This is acknowledged by Brian. However, Brian claims that it was the actions of Jeanine and her family that caused the rift.
[15] Once again, I do not need to sort out credibility of the opposed renditions of the nature of the historical relationship with the paternal grandmother. The undisputed evidence is that the relationship between Brian and his mother has been restored since some time in 2016. The paternal grandmother has a suitable home and she is willing to assist her son with the children. The children do have a relationship with the paternal grandmother and that is something positive to nurture and let grow.
[16] Jeanine claims that she needs to know more about the paternal grandmother’s mental health and other health issues. She provides no material evidence to suggest that there is a need to scour this medical background. The only reference Jeanine brings in as evidence is that there may have been a bout of depression with the paternal grandmother. From this Jeanine wants to know her medical background and even goes so far as to claim that she needs to know what medications the paternal grandmother is taking. I find the whole tenor of Jeanine’s affidavit of May 14, 2020 to be evidence of Jeanine’s overprotective and controlling posture when it comes to allowing for the children to see their father in a meaningful manner.
[17] On February 19, 2010, Brian brought a motion to expand his access on an unsupervised basis. Jeanine responded with a cross motion to change the access to a supervised access centre.
[18] Neither motion could be heard due to the court’s suspension of in court operations in mid-March 2020.
The Law and Analysis
[19] I adopt the views expressed by Justice Pazaratz in Ribeiro v Wright, 2020 ONSC 1829 at paragraphs 20-24:
20 If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion - but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
21 We will deal with COVID-19 parenting issues on a case-by-case basis. a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols. b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to - including social distancing; use of disinfectants; compliance with public safety directives; etc. c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.
23 Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. 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. [Emphasis added]
24 In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.
[20] There is an important balance that must be achieved by a court when considering the impact of COVID-19 and parental contact. I agree with Justice McGee when she stated in Pollard v. Joshi, 2020 ONSC 271 commencing at para. 5:
[5] In this case, the onus is on the mother to provide specific evidence of “J”s health and safety being put at risk, or examples of behavior that is inconsistent with COVID-19 protocols that would expose him to risk.
[6] The harm, or risk of harm of exposer to COVID-19 must exceed the existing harm to “J” by refusing him parenting time with his father.
[21] The best interest of these children is the priority. Their wellbeing and their safety are a major concern. Part of the analysis of best interest is the maximized contact principle.
[22] All too often the ability to use common sense and reason are significantly impaired when separated parents attempt to navigate parenting in the best interest of their children. Unfortunately, this impairment is shown to be frequently heightened in times of the increased stress. Parental conflict in the midst of a dangerous pandemic can have disastrous implications for children both in the short term and the long term.
[23] What is required during this extraordinary life-altering event called COVID-19 is for a proper balance between two important realities. The first is the health and safety of the children. The second is the need for children to see both parents as frequently as the circumstances will allow in their best interests.
[24] Each case must be determined in accordance with the unique circumstances that every family finds themselves in. In the case, we are dealing with children who are 9 and 6 years of age. They are presently caught in the middle of an adult struggle that has complex features that must be considered when determining the proper balance that represents what is in the children’s best interest.
[25] I find that these children need to see their father in a manner that limits conflict, and allows for meaningful access times.
[26] Doctor Bibr is the outpatient psychiatrist treating Brian. She talks to him by phone consultations due to the COVID limitations. I am satisfied that Brian is consistent with his contacts with his psychiatrist and that he is compliant with his medications. As long as this continues, I see no reason why Brian’s mental health challenges would prevent the access times that are set out in Justice Nightingale’s Order.
[27] I am concerned that Jeanine is spending such an extraordinary amount of time “investigating” Brian via detailed analysis of his cell phone records that allegedly were retrieved by her from some form of joint account of his cell phone that she had access to, including her tracking of his minute by minute calls to and from a female friend that he has in Kitchener. She concluded that he was travelling back and forth to Kitchener to see this person. She went even further and looked her up her Facebook page. She determined from this page that his friend worked in the health care field and from that she concluded that his female friend posed a heightened health risk to the children.
[28] Brian admits that he has a girlfriend who works in the health care field but denies that he continuously travels to and from Kitchener. He replied that he was shocked that the mother had access to his phone bill.
[29] Jeanine also has a boyfriend. There is no evidence about him or where he works or how much exposure he has to the children.
[30] The facts before me show that both Jeanine and Brian have extended family and other persons who are important to them coming in and out of their respective homes. This creates a COVID complication that must be addressed in both the mother and father’s home.
[31] The protocols of handwashing and social distancing apply to both households. If someone is coming into the home who has been in a situation of potential exposure to the virus then masks must be worn by the parent and anyone else present when the children are present.
[32] All other health protocols must also be observed. It is not possible to specify every single condition that must be met.
[33] Brian insists that he practices safe social protocols and he will continue to do so.
[34] Jeanine asserts that she also practices safe social protocols and will continue to do so.
[35] This is an expectation of the court and must be something that the children can rely on.
[36] The inclination to be guided by the negative emotions the parents and extended family have to the other parent must yield to the need for the parents to focus on allowing these children to love the other parent and be loved by them.
[37] If that is shown at some later time to not be the focus of either parent, the children will lose out and that parent will be subjected to adverse consequences.
[38] I make the following Order:
- The times of the access set out in Justice Nightingale’s Order of October 19, 2019 are to remain the same.
- The access shall take place in the paternal grandmother’s home with either the paternal grandmother or Brian’s brother supervising.
- This access shall continue until June 15, 2020.
- Brian shall provide to Jeanine an up to date letter from his psychiatrist setting out the treatment compliance by that time and the treatment plan going forward. This letter shall be provided to the court on any motion by Brian to expand the access time.
- Neither parent shall communicate in a manner that disparages the other in front of or in circumstances that any negative communication would reasonably come to the children’s attention.
- Neither parent shall allow any other person to communicate in a manner that disparages the other parent in front of the children or in circumstances that any negative communication would reasonably come to the children’s attention.
[39] If costs cannot be settled by the parties, a brief 3-page written submission may be provided in writing no later than May 30, 2020.
The Honourable Mr. Justice R. J. Harper Released: May 15, 2020
COURT FILE NO.: FC-19-124 DATE: May 15, 2020 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JEANINE MARY SILVA Applicant
- and - BRIAN SILVA Respondent ENDORSEMENT RJH Released: May 15, 2020