Court File and Parties

Oshawa Court File No.: FC-15-552-0000 Date: 2020-05-25 Ontario Superior Court of Justice Family Court

Between: Fawn K.M. Skinner, Applicant And: Jason R. Skinner, Respondent

Counsel: Julia Moote, for the Applicant Jason R. Skinner, Self-Represented

Heard: In-Writing

Reasons for Decision

Charney J.:

Introduction

[1] The respondent father brings this motion for an order to reinstate access with his six-year-old daughter in accordance with the parenting schedule established by Court Order of Hughes J. dated January 15, 2016.

[2] The respondent also seeks additional relief, including the following:

a) An order changing the access schedule to increase his access time since the daughter is not in school at this time. b) An order for “make up time” to make up for access days missed to date. c) An order for police enforcement of the access schedule. d) An order to decrease his child support payments and his share of s. 7 expenses.

[3] The respondent takes the position that the motion is urgent, as set out in the Notices to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[4] The Notices to the Profession direct that only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute, will be heard during this emergency period. Dealing with motions, the Notices state that urgent issues include matters relating to the safety and well-being of a child. An urgent issue may also include “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order”.

[5] Determinations of prima facie urgency are summary in nature, and without prejudice to both parties on the hearing of the motion itself. A determination of prima facie urgency is a preliminary ruling, it is not intended to be a motion unto itself and is intended to be simple and expeditious: Onuoha v. Onuoha, 2020 ONSC 1815, at para. 14.

[6] Having reviewed the materials filed by the parties, I am not satisfied that this motion meets the test for urgency.

Facts

[7] The parties are the parents of a six-year-old daughter. They are subject to a final order of Hughes J. date January 15, 2016. This order sets out the access/parenting schedule for the parties, and gives the respondent father access every other weekend from Friday to Sunday as well as some weekday access and extended summer access in July and August.

[8] The respondent alleges that the applicant has not permitted him to have an overnight access with his daughter since the weekend of February 21 – 23, 2020.

[9] The applicant took the daughter to Florida the week of March 7 – 14, 2020. When they returned home the applicant and the daughter were required to quarantine for 14 days pursuant to the applicable COVID-19 protocol then in force. The respondent acknowledges that the trip to Florida was taken with his consent, and that the applicant and daughter were required to quarantine for 14 days upon their return. His complaint begins with what happened next.

[10] Following the 14 day quarantine period, the applicant refused to permit the respondent to resume his regular access visits with the daughter. The applicant resides with her mother who has lung cancer and is undergoing chemotherapy. The applicant believes that if her mother were to contract COVID-19, it would be fatal.

[11] As a result of these concerns, the applicant has, since March 28, 2020, limited the respondent’s parenting time to Skype access and visits outside of her home. The applicant contends that the respondent agreed to this restriction, but the respondent takes the position that the restriction was imposed unilaterally by the applicant.

[12] On April 15, 2020, the respondent’s former counsel wrote to the applicant demanding that his access resume immediately. There was some negotiation, but the access issue was not resolved.

[13] The respondent served and filed this motion on May 19, 2020.

[14] On May 21, 2020, the applicant swore an affidavit stating that she now consents to the resumption of the parenting schedule set out in the January 15, 2016 Order. She states: “I never intended for the change in the Respondent’s access to be permanent. The change in the Respondent’s parenting time was because of the heightened risk that COVID-19 poses to my household.”

[15] The applicant advises that on May 21, 2020, her counsel wrote to the respondent and confirmed that his parenting schedule would resume that evening at 4:30 p.m. and that the parenting schedule would continue. She also indicated that the respondent had provided his undertaking to comply with strict COVID-19 protocols while the daughter is in his care. The applicant advises that she has also offered the respondent four weekends to make up for the four access weekends that were missed.

[16] The motion material was forwarded to me for consideration on May 22, 2020.

[17] Given the applicant’s agreement to return to the January 15, 2016 parenting schedule and arrange for four make up weekends, it appeared that the parties had settled the issues raised in the respondent’s Notice of Motion, and I was not certain whether the respondent still wished to proceed. I asked the Trial Coordinator to contact the respondent to find out whether he still wanted to proceed with the motion.

[18] On May 22, 2020, the respondent informed the court that he still wanted to proceed with the motion because:

a) One of the four make up weekends proposed by the applicant is actually one of his regular weekends; b) The applicant will not agree to increase his summer access above that ordered on January 15, 2016; c) Given the applicant’s past behaviour, he believes that she will not comply with the order unless there is police enforcement; d) He wants to reduce his child support because he was laid off from his job on May 8, 2020 and wants to reduce his share of s. 7 expenses such as daycare fees and “1/2 of everything else the court order asks me to pay for”. e) The applicant has requested his 2019 Income Tax Return and Notice of Assessment, and he objects to producing these. f) The applicant will not permit him to go for walks or drives with his daughter, and will not permit other members of his household to hug and kiss her.

Analysis Re: Urgency

[19] To begin with, a total denial of court ordered access is an urgent matter. As Pazaratz J. stated in Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7, 10 and 11:

There is a presumption that all court orders should be respected and complied with. More to the point, 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…

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.

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.

[20] While there is a presumption that existing parenting arrangements and schedules should continue, both custodial and access parents and members of their households are obliged to strictly and meticulously adhere to COVID-19 safety protocols, including social distancing, hand washing, use of face masks and compliance with all public safety measures. They must also ensure that their children comply with these protocols while in their care. I recognize that the COVID-19 safety protocols have evolved over the past several weeks and will continue to evolve as the summer progresses. For example, the original safety protocols recommended that persons remain in their home, and go outside only when necessary. More recent protocols have relaxed these requirements, and people may now enjoy the outdoors, provided that they maintain social distancing and wear masks when social distancing may be difficult.

[21] While the applicant’s concern for her mother’s health is understandable, she was not permitted to unilaterally deny the respondent his court ordered access with the daughter after their 14 day isolation period ended on March 28, 2020. That said, March 28, 2020 was still early in the pandemic period, and there existed much confusion and uncertainty regarding the COVID-19 virus, even among medical professionals. The applicant’s mother falls within the category of vulnerable persons who are at increased risk of more severe outcomes, and I do not fault the applicant for her efforts to protect her mother in these circumstances.

[22] Nor do I fault the respondent for bringing this motion. Had the applicant not agreed to resume the parenting schedule set out in the January 15, 2016 Order, this motion would have been sufficiently urgent to merit a hearing. Perhaps, with good faith negotiations, this dispute could have been resolved without the respondent serving his notice of motion, but I am not concerned, at this point, with whether the dispute could have been settled at an earlier date, only with whether the dispute and its attendant urgency remains outstanding today.

[23] The respondent has agreed to comply with strict COVID-19 protocols while the daughter is in his care, and the applicant has agreed to resume the parenting schedule established by the January 15, 2016 Order. As such, the primary issue in this motion has been resolved, and is no longer urgent.

[24] The remaining issues raised by the respondent do not, in my view, satisfy the test for urgency.

[25] While a total denial of access may be urgent, the request for four make up weekends is not. The applicant has agreed that regular access will resume. If make up weekends are not settled now, they can be addressed in the future. Moreover, the applicant has already offered the respondent four make up weekends, and the respondent’s only complaint is that one of those four weekends falls on a weekend that is already his access weekend. If this is true, it is likely an innocent error on the part of the applicant, and can certainly be resolved by good faith negotiations. If not, the temporary loss of a single access weekend is not an urgent matter: Tessier v. Rick, 2020 ONSC 1886, at paras. 13 and 15.

[26] The respondent’s request to expand his summer access beyond that ordered in the January 15, 2016 Order is not urgent. That said, given that the respondent is currently unemployed, and the daughter is not in school, the respondent’s proposed change may make sense, and it may be something that the parties can resolve, on a temporary and without prejudice basis, with good faith negotiations. But I am not persuaded that a change to the existing court order is urgent: Batchelor v. Batchelor, 2020 ONSC 1921, at para. 17 (a).

[27] Even assuming the accuracy of the respondent’s allegations in this case, the respondent has failed to provide any basis for ordering police enforcement, let alone finding that a motion for police enforcement is urgent.

[28] Numerous cases have confirmed that police enforcement orders should be granted sparingly and should be limited to exceptional circumstances and as a last resort when other judicial enforcement tools have been unsuccessful. Police enforcement should be ordered only when it is shown to be in the best interests of the child, after considering the risk of trauma that police enforcement might cause to the child. Police enforcement is not available “as a long-term, multiple-use, open-ended, on-demand enforcement tool”: Patterson v. Powell, 2014 ONSC 1419, at paras. 13 – 35; Multani v. Rana, 2020 ONSC 2433 at paras. 131 -132; Medu v. Medu, 2020 ONSC 2582, at para. 22; Tessier v. Rick, 2020 ONSC 1886, at para. 17.

[29] Finally, while being laid off work might qualify as a “dire issue regarding the parties’ financial circumstances” (Lakhtakia v. Mehra, 2020 ONSC 2670), the moving party must present some material to persuade the court that the motion is urgent in his specific case. The respondent has provided no information that would enable the court to decide that his motion to reduce child support payments and s. 7 expenses is urgent. He states that he was laid off work on May 8, 2020, but he does not indicate what his current child support payments are, what income they are based on, or what reduction in child support he is seeking. Without this information, an assessment of urgency is not possible.

[30] The respondent also complains that he cannot afford to keep paying his share of daycare fees, but he does not indicate what those fees are or what amount he has been asked to pay since he was laid off work on May 8, 2020. Given that all daycares in Ontario have been closed since March 2020, I cannot imagine how the issue of daycare fees is urgent. His material provides no hint of what his other s. 7 expenses have been in the past, or what they might be for the remainder of the year. Without this information, an assessment of urgency is not possible.

[31] The respondent complains that the applicant has requested disclosure of his 2019 Income Tax Return and Notice of Assessment, and he has refused to provide these. The applicant is entitled to full disclosure of this information. No court will consider the respondent’s motion to reduce his child care and s. 7 expenses unless such disclosure has been made. The respondent cannot refuse to disclose his financial information and claim that his motion to reduce his financial obligations is urgent.

[32] The respondent has also raised a concern that the applicant has been involving the child in the litigation and conflict by discussing matters at issue with her. He alleges that at his last visit, the daughter asked him why he called the police on the applicant. The parties are reminded that para. 5 of the final Order of January 15, 2016 provides that neither party shall speak despairingly of the other parent. The child should not be involved in discussions regarding any ongoing conflict between the parties.

Conclusion

[33] The respondent has agreed to comply with strict COVID-19 protocols while the daughter is in his care, and the applicant has agreed to resume the parenting schedule established by the January 15, 2016 Order.

[34] Given the applicant’s mother’s vulnerable medical condition, the applicant will have to maintain extra vigilance to ensure that her mother is not exposed to COVID-19. The applicant cannot, however, isolate her daughter at home until a cure or vaccine has been discovered. Provided the respondent complies with all government protocols, directives and recommendations relating to physical distancing and other precautionary measures to avoid exposure to COVID-19, the parenting schedule established by the January 15, 2016 Order must be maintained.

[35] The applicant may not unilaterally impose on the respondent conditions in addition to the safety precautions required by government and public health officials. If, given the applicant’s mother’s medical condition, the applicant is of the view that additional precautions are required, and the respondent does not agree to follow them, the applicant is granted leave to bring an urgent motion to request the court to add such conditions to the parenting schedule. Any such motion must be accompanied by medical evidence to support the request.

[36] For the reasons given, I conclude that the respondent’s motion is not urgent at this time. This decision is without prejudice to the respondent’s right to renew the motion once regular court operations resume.

[37] Given that the parties were able to settle the primary issue on this motion, and given that the court declined to hear the motion because the remaining issues are not urgent, there will be no order as to costs.

Justice R.E. Charney Released: May 25, 2020