SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wendy Atkinson, Applicant
AND:
Daniel Wilton, Respondent
BEFORE: Conlan J.
COUNSEL: Catherine A. Haber, Counsel for the Applicant
Daniel Wilton, Self-Represented
HEARD: May 22, 2020
ENDORSEMENT ON MOTION
I. Introduction
1This matter was brought, heard and determined during the global health crisis, the COVID-19 pandemic, and while the normal operations of the Superior Court of Justice were suspended. Written materials were filed by both sides, and submissions were heard by audioconference call on May 22, 2020.
2On June 21, 2019, a Final Order was made by Justice Diamond of the Superior Court of Justice in Toronto which granted to the parties joint custody of their daughter, currently 11 years old. The child was ordered to live primarily with the mother, the Respondent on this Motion, W.A., and have access with the father, the Moving Party in this Court, D.W., every second weekend from Friday at 5:00 p.m. to Sunday at 5:30 p.m.
3By Notice of Motion dated May 4, 2020, D.W. asks that this Court enforce the said Final Order of Diamond J. “as well as grant additional requested orders”.
4In his Affidavit (unsigned and unsworn but treated as properly sworn evidence by this Court) dated May 4, 2020, D.W. states that he has not had physical access with his daughter since March 9, 2020, which assertion is not disputed by the mother. He alleges further that W.A. has suspended all in-person access due to the COVID-19 health crisis, also an undisputed fact.
5There is a text message in the evidence filed by D.W. dated April 3, 2020, from the mother to the father, wherein the mother states “[w]e’re assuming you know that regular visitations are cancelled as for now till all this clears…to avoid any risk…[the child] will call u”.
6In her sworn Affidavit dated May 11, 2020, at paragraph 8 therein, W.A. summarizes her position on whether the access Order of Diamond J. ought to be enforced at this time: “[w]ith respect to [D.W.’s] claim that the Court ought to enforce the regularly scheduled access, it is my position that until the COVID-19 crisis passes and the Government/Health Department lifts social distancing measures and other restrictions, it is not in [the child’s] best interests to have ‘in person’ access with [D.W.]”.
7On a prior date, this Court decided that the Motion anticipated to be brought by D.W. was urgent, at least in part, and could therefore be heard by the Court during this period of partial shutdown of the Court’s normal operations, subject to revisiting that determination later on.
8There is no question that the issue of the enforcement of the Final Order of Justice Diamond is urgent. The rest of the relief sought in the Motion is clearly not urgent and was not pressed as being such by D.W. in either his evidence or in his oral submissions.
9On the former, litigants and lawyers can spend all the time that they wish dissecting the word “urgent” and debating the niceties of that term, or in cases that are clear we can simply skip the rehearsal and go straight to the ceremony. A father has a Final Order for joint custody and bi-weekly in-person access with his daughter and has that unilaterally suspended at the whim of the mother, with the suspension lasting for many weeks already and potentially for many months to come. That’s an urgent situation.
10To her credit, Ms. Haber, counsel for the mother, took the responsible position in this case in conceding that the issue of the suspension of the father’s in-person access with the child is indeed urgent. She should be commended for taking that position.
11Further, on this business of “urgency”, I would be remiss if I did not add something to the conversation, for what it is worth. Judges are not elected in Canada, but we are public servants. The Courts are an essential service, in my opinion. Access to justice and the accountability of judges to the public that we serve demand that the Courts, in my humble view, not be too quick to slam the door shut on a request to be heard on the basis that the matter is not important, or “urgent”, enough at this time. The gulf between judges and the public at large has never been as wide as it is currently, during this extraordinary health crisis. I, for one, do not intend to exacerbate that by being overly discriminating in the determination of what constitutes an “urgent” matter, especially in family law proceedings involving the custody of and access with children.
II. Decision
A Brief Summary of the Most Material Evidence
12In terms of medical evidence regarding the child, which evidence I find to be more credible and reliable and more independent and objective than that of either party, this Court has reviewed the letter of Dr. Singh dated April 24, 2020. It confirms that the child has asthma, “has ongoing cough and is on Ventolin inhalers”. The doctor writes “[d]ue to the COVID Pandemic – it is advised that she [the child] does not travel and be exposed to situations in which she could develop an infection”. Further, “[i]t is my recommendation that she [the child] remains indoors and use the necessary precautions regarding masks, hand washing and social distancing”.
13W.A. has also filed an updated letter from Dr. Singh dated May 11, 2020. Much of the content of that letter is a carbon copy of what was written in the April 24th correspondence, except this time the doctor adds “[p]atients who are asymptomatic can still harbor and transmit the infection. It is therefore advisable that [the child] remains at one place and not move about to minimise the risk of transmission. She should avoid visits to other residences”.
14In his reply Affidavit, again unsigned and unsworn but treated as properly sworn evidence by this Court, dated May 14, 2020, D.W. states that he spoke with Dr. Singh on May 13 and May 14 to try to clarify some of the doctor’s comments in the letter dated May 11th but has been effectively stonewalled (my word) in obtaining something in writing from the doctor.
III. Conclusion
15In my view, in any case where a parent decides to suspend the other parent’s Court-ordered access to a child because of concerns about COVID-19, even where it is determined by the Court that the decision to suspend the access was made genuinely out of concern for the health and welfare and best interests of the child, as I find to be the case with W.A., these principles ought to apply: (i) there is a legal presumption that the Court-ordered access that was in place before the pandemic arose should continue/resume, with all of the necessary precautions in place as recommended by the health authorities, (ii) the parent that suspended the access bears the onus of rebutting that legal presumption, even if the motion before the Court, as here, is brought by the parent whose access has been suspended, and (iii) to rebut that legal presumption, cogent evidence, preferably from an independent medical source, must be presented to support the position of the parent who has suspended the access and permit the Court to conclude that the suspension of the access is more in the best interests of the child than continuing/resuming the access as previously ordered by the Court.
16Here, I find that W.A. has failed to satisfy that test on a balance of probabilities. There is no way that the letters from Dr. Singh were intended to deprive the child from seeing her father or from going to her father’s residence, specifically, as opposed to general travel and visiting other residences generally, and if the letters were intended to be that draconian than it was incumbent on W.A. and/or Dr. Singh to make that clear in the evidence. Ms. Haber, on behalf of the mother, fairly and reasonably did not challenge this point when it was raised in oral submissions.
17In addition, although W.A. has raised legitimate concerns about D.W.’s employment with a scaffolding company and as a driver for the company Lyft, concerns that D.W. should have but did not address at all in his reply Affidavit, as I stated during the hearing of the Motion, this Court can adequately protect against those concerns with an Order today prohibiting Mr. Wilton from continuing with one or both of those jobs. There appears to be no prejudice to Mr. Wilton anyways because, although not before this Court in the form of proper evidence, he stated during his oral submissions on the Motion that neither of those jobs is a current one.
18Consequently, the Motion is allowed in part. This Court orders that the bi-weekly in-person access between D.W. and the child, as per the Final Order of Diamond J., shall resume commencing on Friday, May 29, 2020. It is further ordered that D.W. shall not resume his employment with Lyft and/or the scaffolding company. Finally, it is ordered that D.W. shall adhere strictly to all safety precautions currently recommended by Health Canada as posted on the website, https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html, including but not limited to, where appropriate, frequent hand-washing for D.W. and the child, the use of an approved hand sanitizer by D.W. and the child, the use of masks and gloves by D.W. and the child, and physical distancing by D.W. and the child from any third party.
19I impugn no motives on the part of the mother, W.A. But let me be clear – we cannot function as a society that respects the rule of law if we permit a parent to unilaterally suspend access to a child that has been Court-ordered on account of concerns, even genuine ones, about COVID-19, and then act as the sole arbiter as to when it is safe enough to resume that access. This is one Judge who is not prepared to throw out the rights of access parents on account of a virus except on the basis of a strong evidentiary record to support such a drastic measure. That evidentiary record is not present here.
20The remainder of the relief sought in the Motion is dismissed. None of it is urgent. None of it is appropriate absent a Motion to Change the Final Order of Justice Diamond.
21Rather than receive submissions on costs in writing, if the parties cannot agree on costs, they may schedule a brief teleconference through the Trial Office in Milton. Perhaps they should consider whether each side should bear its own costs.
(“Original signed by”)
Conlan J.
Date: May 22, 2020