COURT FILE NO.: FS-17-90706-00 DATE: 2020 05 21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.(“M.”) B. Jared Teitel, for the Applicant Applicant

• and -

M.F.B. Respondent Rachel Radley, for the Respondent

HEARD: May 15, 2020 (via teleconference)

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Applicant Father sought leave to have an urgent motion heard pursuant to the Notice to the Profession dated March 15, 2020 (“the Notice”), wherein he sought the resumption of his court-ordered access. An initial finding of urgency was made, and this motion was scheduled with a timetable for the delivery of materials. In the course of reviewing the materials, it came to light that this Application was being case managed by LeMay J., which was not indicated when the Applicant sought leave to be heard. LeMay J. had made an order in February 2020 that there would be no further motions without his permission as the case management judge. Fortunately, LeMay J. was able to hear submissions on leave at the commencement of this motion and subsequently granted leave to proceed. His endorsement will be released separately.

Background

[2] The parties were married on October 18, 2014 and separated three years later on October 19, 2017. There is one child of their marriage: a daughter, Alessia Barbosa, born September 23, 2016.

[3] On November 14, 2017, the parties entered into Minutes of Settlement with respect to interim access, which became the order of Price J. of that same date. In that Order, the Father was to have access every Tuesday evening and every Sunday between 10:00 a.m. and 4:00 p.m. In 2018, the Father moved to London, Ontario and as a result, no longer exercised his Tuesday evening access. The Father continued to exercise his Sunday access every week since that time, driving from London, spending time with his daughter, and then driving home.

[4] The Father exercised his access up to and including March 15, 2020, but since that day, the Mother has refused to provide any in-person access. Video access has continued. At no time did the Mother seek leave of this court to have an urgent matter heard allowing her to vary the current Order. Due to her concerns, which will be addressed later, she unilaterally suspended all in-person access. It was not until the Father sought leave to bring an urgent motion to resume his access that she requested in the narrative of her affidavit materials that access be suspended.

[5] The Mother lives with her elderly parents. The maternal grandfather has a recent history of lung cancer. The Mother was treated for thyroid cancer in 2016/2017 and had additional surgery in January 2017. The Mother claims both she and the maternal grandfather have weakened immune systems as a result.

[6] The Father lives with his new partner, his partner’s child from another relationship and an infant he shares with his new partner. His partner’s child also has access to her father. Access by the child to the Father has been facilitated through the Father’s aunt. In addition, the Father is in the construction industry and in particular, the concrete trade. He has been permitted to work full time throughout this pandemic. Accordingly, due to the particular family dynamics of both households, the conduct of either of the parties has far-reaching consequences on at least four households or more.

[7] The last several months have been further complicated by the Mother’s allegation that the child of the marriage was ill, which the Father has denied, or at least he has denied the seriousness of this illness. In order to alleviate his concerns, the Mother invited the Father to contact the child’s doctor directly to make his inquiries. The Father asked the doctor specifically if the doctor had recommended that the Mother not allow in-person access to the Father, and if the doctor does recommend that no in-person access take place, whether it was in relation to the child’s current illness only and whether access could resume after the child recovers, notwithstanding the continuation of the pandemic.

[8] In response, the doctor indicated that she had a tele-appointment with the Mother on March 19, 2020. The doctor acknowledged that prior to this appointment, the child had been diagnosed with a respiratory infection by a doctor at a walk-in clinic and prescribed Amoxil. As of March 19, 2020, the Mother reported that the child was still recovering and was coughing at night. The child’s doctor diagnosed post-infectious reactive airway diseases and recommended a course of Ventolin and Flovent inhalers. The doctor also indicated that the child was previously prescribed these medications in November/December 2019 and that the child was referred for an allergy/asthma assessment. Unfortunately, that assessment was delayed due to the pandemic.

[9] The child’s doctor also indicated a follow up tele-appointment took place on March 26, 2020. The Mother reported that when the inhalers were stopped, the cough returned. The doctor also recognized that the child lived in a household where exposure to the COVID-19 virus would bring higher health risks. As for a recommendation, the doctor wrote to the Father’s counsel as follows:

In answer to your questions, I have advised that Alessia needs to have controlled asthma or she will continue to suffer cough, that now that she is over the infection, she is not in isolation, however, it is in Alessia’s best interest to remain in a single household.

Note, access is a legal question, not a medical question.

[10] This is a high conflict matter. The parties were expected to go to trial in May 2020. Unfortunately, due to the current pandemic, the trial has been adjourned to January 2021.

Urgency

[11] The issue of urgency was prima facie made out when the Father sought leave to bring this motion.

[12] It is not disputed that court-ordered access has been withheld since March 15, 2020, without any steps taken by the Mother to vary this access. In fact, the evidence she presents in support of the suspension of access was gathered for the most part after she unilaterally decided to suspend access.

[13] As stated by Kurz J. in Thomas v. Wohleber, 2020 ONSC 1965, at para. 38, the following factors are necessary in order to meet the Notice’s requirement of urgency:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[14] These factors contemplate a parent bringing a motion on an urgent basis in order to change access arrangements. In the case at hand, the Mother brought no such motion, and it was the Father who was compelled to bring a motion to force the Mother to comply with court-ordered access. Her claim for relief, suspending access, was only brought as a response to the Father’s motion.

[15] Nonetheless, the Father’s urgency has been made out. His concerns cannot wait until the resolution of this pandemic. He has been denied access to his 3-year-old daughter for approximately two months. He only sees her once per week – this time should be honoured. His concerns are readily made out in the evidence, and in fact, the Mother concedes she has withheld access. Accordingly, the urgency of the matter is made out and the motion should proceed on its merits.

Suspension of Access

[16] Prior to hearing this matter, I reviewed the following materials:

a) Notice of Motion; b) Affidavit of the Applicant, sworn May 6, 2020; c) Affidavit of the Respondent, sworn May 11, 2020; d) Reply Affidavit of the Applicant, sworn May 13, 2020; e) Affidavit of Steven Ostrander, sworn May 6, 2020; f) Affidavit of Matthew Romanick, sworn May 7, 2020; g) Affidavit of Richard Pengelly, sworn May 7, 2020; h) Factum and Brief of Authorities of the Applicant; and i) Statement of Law of the Respondent.

[17] There is a presumption that all orders should be respected and complied with. In particular, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child: Ribeiro v. Wright, 2020 ONSC 1829, at para. 7. Without the Father’s agreement or a further court order, the suspension by the Mother of the Father’s court-ordered parenting time is a self-help remedy and cannot be condoned: see Skuce v. Skuce, 2020 ONSC 1881, at para. 36.

[18] The Mother’s reasons behind her disregard of a court order are threefold:

a) The Father is not following public health protocols regarding the protection of himself and his family from possible COVID-19 infection; b) The child of the marriage may be at heightened risk if she contracts COVID-19 given that she is being assessed for asthma or allergies; and c) The Father abuses alcohol and frequents a drug house.

i. COVID Related Concerns

[19] There are circumstances in which the suspension or alteration of access is appropriate during the pandemic. As stated by Pazaratz J. in Ribeiro:

10 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.

11 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.

12 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).

13 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.

14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

17 Each family will have its own unique issues and complications. There will be no easy answers.

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.

[20] It is clear that each family poses it own distinct challenges. Risky behaviour by the Father or the Mother has the potential to impact four separate households. That being said, even if a parent has concerns about another parent, it is not appropriate to go to the “nuclear solution” and suspend all access. There should be a willingness to consider a less restrictive order, one that proposes any number of additional terms which might enhance safety while still promoting meaningful timesharing: Johnson v Johnson, 2020 ONSC 2896, at para. 22.

[21] The Mother claims she could not afford to bring a motion to vary the current access order because of the cost. This is a hollow allegation given that it now appears the Mother has hired a team of private investigators to follow the Father for the last month and a half. She did not have the results of this investigation when she unilaterally terminated access.

[22] The Mother’s evidence shows that the investigators, who spent a total of 25 of 50 days surveying the Applicant, never saw him use a mask, a face shield, gloves, or any protective clothing while outside the house. He was never seen using hand sanitizer. That in and of itself is not a reason to deny court-ordered access. Many people are walking around without masks and gloves when they exit their homes; that does not make them irresponsible parents. The fact that the Father does not wear a safety helmet at the worksite is also of no consequence to this court. That is between the Father and his employer.

[23] There was also some early evidence that the Father’s current partner allowed her daughter to play with other neighbourhood kids and that the Father allowed the children to play on a play structure outside. While not advisable, this was early on in the pandemic, and there was some uncertainty as to what was safe. It is notable that the investigators saw no such activity since the latter half of March 2020.

[24] What is of concern to the court is the Father’s failure to socially distance himself from others while under observation. Whether or not he frequents the same Beer Store, LCBO, or variety store, or whether or not he works with the same individuals, there must be some efforts to stay at least 6 feet apart. In the instances under surveillance when he was with work colleagues or at a property located at 39 Cliftonvale Avenue, in London (“the Cliftonvale Residence), there appeared to be no efforts to socially distance himself from the others.

[25] The necessity of social distancing while on the job is reflected in the notice provided by the Father’s employer, which was produced by the Applicant, and in the safety signage placed at the sites where the Father works.

[26] In his Reply affidavit, the Father provided evidence of keeping gloves in his truck or standing apart from his work colleagues. Admittedly, the private investigators were not able to watch the Father while he was on site at work. The Father also submitted pictures of hand sanitizer kept in places that the private investigators could not possibly see. He gave evidence of having only limited interaction with extended family, of ordering groceries online, and sometimes using drive-thru services at the Beer Store.

[27] The surveillance reports do not support such diligence. That being said, there is insufficient or conflicting evidence that shows conduct that “recklessly exposes a child (or members of the child’s household) to any COVID-19 risk” as outlined in Ribeiro. At least at this juncture, there has been no conduct that would justify a “nuclear approach.”

[28] I recognize that the child may suffer from asthma. That in and of itself is not grounds for the suspension of in-person access. There have already been several cases considered since the suspension of the court’s regular operations where, despite the child’s confirmed diagnosis of asthma, in-person access continued, with the appropriate precautions: see Johnson; Jeyarajah v. Jeyamathan, 2020 ONSC 2636; Lyons v. Lawlor, 2020 ONCJ 184; and Lovric v. Olson, 2020 ONSC 2563.

[29] I have also considered the recommendation by the child’s doctor that the child remain in a single household. The doctor’s report confirms that currently, the child has recovered from her infection and her (suspected) asthma is under control. Puffers have been prescribed that will treat any symptoms. To her credit, the doctor recognizes that access is a legal question and not a medical one.

[30] I accept that exposure to more households can potentially increase the chance of contracting COVID-19. This does not necessarily mean that this risk cannot be managed with appropriate safety precautions: see Lovric v. Olson, 2020 ONSC 2563, at para. 33.

[31] While ideally, everyone would remain in a single household, the child’s symptoms or illness do not justify the “nuclear approach” of suspending all access. She only sees the Father once per week. That being said, the Father’s less than vigilant adherence to social distancing protocols needs to be addressed and other adjustments need to be made to limit the child’s potential exposure to the COVID-19 virus.

ii. Drugs and Alcohol Related Concerns

[32] It is clear from the investigative reports that the Father drinks alcohol on a daily basis, and he has been seen drinking on at least two occasions in his vehicle while parked, and often on the job. This concerns the Mother because the Father has to drive to visit his daughter and spends part of his access time in his vehicle.

[33] The Father, while denying any issues with alcohol, has voluntarily provided a photo of a breath sample to the Mother before and during his visits with the child. He has indicated that these tests show no alcohol in his system for 1 ½ years on the day of his access visit. Unless the Father has recently taken up drinking, it can only be inferred that he stops his drinking in enough time prior to his access visit so that he has no alcohol in his system at that time. The mother now objects to the device the Father uses and claims it is unreliable. No reliable evidence was provided by the Mother to support this suspicion other than an article presumably retrieved online. This is not evidence on which the court will rely.

[34] The Father’s frequent attendance at the Cliftonvale Residence is of concern to the court. The Father maintains that this is a construction site which he is required to attend in the course of his employment. His evidence is not supported by the observations of the private investigators. With the exception of one attendance when he delivered some iron rods on May 1, 2020, the remainder of his attendances are for only a few minutes at a time. Some of these attendances are after working hours or on the weekends. More often than not, he brings beer to this residence. The Father maintains that he is in the concrete trade. No evidence of concrete work being done was disclosed. While I make no finding of what is going on at this address, it is clear that numerous people come and go all day, and no one attempts to practice social distancing while doing so.

Conclusion

[35] Every situation is unique. Every family is unique. Some concerning behaviour has been highlighted that should be addressed. However, that does not mean that access should be suspended altogether; it means that risk should be reduced. The first appropriate step to take is to eliminate the Father’s aunt as the facilitator of exchanges. This will reduce unnecessary interaction. A second step is to strictly enforce the safety protocols in place to minimize the transmission of COVID-19. Another step is to shorten the time for access, as there are fewer things for the Father and child to do while in Brampton at this time. This order shortening the Father’s time is not made with the intention of limiting the Father’s time with the child but only to recognize that the activities they can safety participate in at this time are limited. Hopefully, with the weather improving and some restrictions on gatherings being relaxed, there will be more that the Father and child can do outdoors or at his aunt’s residence. The Mother will be expected to cooperate in extending the access time back to the usual six hours when restrictions are lightened.

Orders

[36] Accordingly, I make the following orders:

a) The Mother’s unilateral suspension of access by the Father to the child was wrongful and should be recommenced immediately;

b) On a temporary and without prejudice basis, the Order of Price J., dated November 14, 2017, is varied as follows:

1. The child Alessia Barbosa, born September 23, 2016, shall be in the Father’s care each Sunday from 12:00 noon to 2:00 p.m.

2. All access exchanges shall take place at the residence of the Mother; the Father shall not go to the Mother’s house but shall remain in his vehicle and text the Mother when the child can come to his vehicle and when she is being returned to the Mother’s home; the Father will remain until he sees the child is safely in the Mother’s home;

3. While the child is with the Father, the Mother shall ensure that the child has with her the inhalers prescribed by the doctor, which shall be returned to the Mother at the end of the access visit; the inhalers shall include instructions for how they are to be used and when their use is appropriate;

4. The Father’s practice of sending photos of breath samples to the Mother shall continue;

5. The Father shall follow, abide by and comply with all federal and provincial COVID-19 protocols and directives, both on his own and while the child is in his care, including practicing and maintaining social distancing and avoiding all social gatherings, and having hand sanitizer on his person at all times;

6. The Father shall ensure he practices social distancing while at work;

7. Until which time the Father provides sworn evidence from the owner of the Cliftonvale Residence, including photographic evidence, of the work the Father is actually completing at this residence and the necessity of other people attending at the residence, the Father shall not attend at the Cliftonvale Residence; if such evidence is provided to the reasonable satisfaction of the Mother, the Father shall ensure that he remains at least 6 feet from any other individual at this location;

c) In accordance with the Order of LeMay J., dated April 27, 2020, the affidavit of Emmanuel Barbosa sworn May 6, 2020, with exhibits, the affidavit of Maria Femia Barbosa, sworn May 11, 2020, with exhibits, and the Affidavit of Emmanuel Barbosa, sworn May 13, 2020, are to be sealed and only used in accordance the aforesaid Order of LeMay J.

d) The parties are encouraged to agree upon the quantum of costs themselves. If they are unable to do so, the Applicant shall serve and file his costs submissions, limited to 2 pages, single-sided and double-spaced, exclusive of Costs Outline, offers and case law, no later than 4:30 p.m. on June 5, 2020. Any responding submissions by the Respondent, with the same size restrictions, shall be served and filed no later than 4:30 p.m. on June 19, 2020. Any reply submissions, with the same size restrictions, should be served and filed no later than 4:30 pm. on June 26, 2020. If no costs submissions are received by June 5, 2020, there shall be no costs. All costs submissions will be filed by emailing same to my judicial assistant sara.stafford@ontario.ca.

Fowler Byrne J. Released: May 21, 2020