Court File and Parties

COURT FILE NO.: FS-14-14990-01 DATE: 20200526 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Dawn Marie Hurst, Applicant – and – Kevin Brian Hurst, Respondent

Counsel: Michael D. Frank, for the Applicant Maria Fernandes, for the Respondent

HEARD: May 25, 2020

Endorsement

THIS MOTION HAVING BEEN HEARD BY CONFERENCE CALL PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.

BONDY J.

A. Introduction

1) Background

[1] The applicant, Dawn Marie Hurst (“Ms. Hurst”), is 32 years of age and the respondent, Kevin Brian Hurst (“Mr. Hurst”), is 65 years of age. They have two children together, Serena Hurst (“Serena”) born December 29, 2008, and Chloe Hurst (“Chloe”) born November 1, 2013. The respondent is on a small disability pension as a result of a stroke. Consequently, he does not own a car.

[2] An order of Verbeem J., dated October 7, 2015, provides that the parties have joint custody of the children and that the children’s primary residence is with the applicant mother. On November 14, 2018, Hebner J. made an order providing that the respondent father have access to the children alternate weekends from Friday at 5:30 p.m. until Sunday at 5:30 p.m. The applicant mother however has refused access. As a result, the children last saw their father either on March 13 or on March 21, 2020. Although it was not entirely clear from the evidence, I ultimately concluded that it was more likely than not March 21, 2020.

[3] The respondent father brought a motion requesting the matter of restoration of access be heard on the basis of urgency. On May 13, 2020, Hebner J. found the matter to be urgent and directed that the respondent father may serve and file his motion materials.

2) Summary of the positions of the parties

a) The position of the applicant mother

[4] The applicant mother maintains that the respondent father has breached the public health safety protocols by bringing the children to a park and by bringing them grocery shopping. According to the applicant mother, she made the respondent father aware of her concerns, but he failed to take them seriously. The applicant mother maintains that she cannot trust the respondent father. That is because he will do what he wants to notwithstanding the COVID-19 crisis. Accordingly, she terminated access. The parties’ lawyers subsequently initiated a schedule for telephone access.

[5] According to the applicant mother, the respondent father failed to call the children on April 17, 21, 24, 28, May 1 and 5, 2020 as scheduled. It was the applicant mother’s evidence that she did not know why he had not called. The applicant mother acknowledges that she and the respondent father met at Walmart. The applicant mother deposed that she inquired as to why the respondent father had not called and he answered that “he was not allowed to do so”.

b) The position of the respondent father

[6] The respondent father maintains that the central issue in this proceeding has been parental alienation. He also maintains that this is not the first time the applicant has withheld access.

[7] The respondent father acknowledges discussions about safety during the COVID-19 crisis. He also acknowledges having taken the children to the grocery store and to the park.

[8] The respondent father deposes that he would never do anything to harm his children. He also expressed uncertainty as to whether the subject protocols were in place on March 13, 2020 when he believes he took the children to the store and to the park.

[9] The respondent father acknowledged that there had been an agreement for telephone access. According to the respondent father, he had agreed to telephone access only after being “yelled at” by the applicant mother with respect to the public health protocols. In his reply affidavit, the respondent father also said that he had agreed to telephone access because the authorities were calling for a spike in the COVID-19 cases and he in no way wanted his children exposed to that.

[10] The respondent father also acknowledged that once the transition to telephone access had occurred, he had failed to initiate many of the scheduled telephone access visits. It was, however, his evidence that the telephone access visits were “artificial and awkward” for several reasons. According to the respondent father, the access visits were typically less than five minutes at a time, and according to the respondent father, the applicant mother’s boyfriend was present with the children during those telephone access visits “making snide remarks on the other side of the phone”. On other occasions, the applicant mother hovered over the girls as he spoke to them, rendering meaningful access impossible.

[11] According to the respondent father, he advised the applicant mother through counsel that he was prepared to follow any public health protocols in place such as social distancing, frequent hand washing, ensuring he had groceries at home prior to the children visiting, insisting they not attend at the park, and whatever other directives may be put in place. Notwithstanding, the applicant mother continues to refuse the children’s access with their father. The respondent father also says that he continues to stay home in accordance with public health community directives.

B. Analysis

1) Access

a) The overarching principles

[12] As was observed by Pazaratz J., at para. 13 of the decision in Ribeiro v. Wright, 2020 ONSC 1829, “[i]n troubling and disorienting times, children need the love, guidance and emotional support of both parents” (emphasis in original). “None of us knows how long this crisis is going to last.”

[13] In cases such as this where there is an existing court order, there is a presumption that order should be respected and complied with. There is also a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child: see Ribeiro, at para. 7.

[14] It follows that the central issue in this case is whether the applicant mother or respondent father will expose the children to any unnecessary risks in the future: see Ribeiro, at para. 10. Said another way, does the lifestyle of either create an unnecessary risk for the children?: see Ribeiro, at para. 13.

b) The quality of the evidence

[15] Much of the applicant mother’s affidavit is devoted to historical friction between the parties. For example, the Windsor-Essex Children’s Aid Society (“CAS”) has been involved with the parties in the past. According to the applicant mother, the respondent father made false accusations about her parenting ability which were not verified. The applicant mother also maintains that the respondent father makes racially inappropriate comments about her because the applicant mother is white and the respondent father is black. To be clear, the respondent father denies that he called the CAS or that he has made racially inappropriate comments to the applicant mother.

[16] As is often the case in high conflict situations such as this, much of the evidence of the parties as to critical issues is irreconcilable. Without the beneficial features of a trial such as cross examination, it was often difficult for me to know who was telling the truth.

c) The risks associated with the applicant mother’s lifestyle

[17] According to the respondent father, the applicant mother and her boyfriend continuously come and go from their house. He similarly maintains that the applicant mother’s son, her son’s baby, and the baby’s mother sometimes sleep at the applicant mother’s house and sometimes elsewhere.

[18] The applicant mother acknowledges that her boyfriend and 23-year-old son do live with her due to the COVID-19 crisis. She, however, maintains that they have been “isolating and staying at home”. The applicant mother says that she does grocery shopping every two weeks, and practices social distancing when she leaves the home.

[19] The applicant mother however acknowledges that her boyfriend returned to work in the construction industry on May 11, 2020. Unfortunately, there was no evidence as to what, if any, precautions he is taking to avoid bringing the virus home with him after work.

d) The risks associated with the respondent father’s lifestyle

[20] I reiterate that it was suggested that access ended on March 13, 2020, which was a Friday.

[21] Inexplicably, there is an email attached to the applicant mother’s affidavit which appears to be dated March 20, 2020. In other words, it is dated the Friday after the last access visit took place. In that affidavit the respondent father asks the applicant mother to send the children’s scooters with them for their access visit that they can play in the park. The applicant mother states that if the respondent father is going to take the children outside, they are not coming for their access visit. The respondent father then promises to keep the children indoors. The applicant mother agrees to bring the children.

[22] Having considered all of the evidence and the arguments of counsel, I conclude that the children were more likely than not brought to the respondent father’s home later that day and stayed with him until the following day. In other words, both this trip to the park and the last access visit occurred a full week after the respondent father said they had.

[23] The respondent father’s affidavit makes it clear that by early April, the news about the COVID-19 virus was frightening. He speaks of people dying in China, Italy and Spain and military trucks rolling out dead people to mass graves in Italy. Taking the applicant mother’s position at its best, and presuming the respondent father initially underestimated the COVID-19 virus, it appears that by mid-April the respondent father was likely aware of its dangers.

[24] The respondent father says that he has been, and continues to remain, home in accordance with public health community directives. I was unsure exactly what that means. I say that because the respondent father candidly acknowledged having “bumped into the applicant mother at the east end Walmart” on May 8, 2020.

[25] I conclude that while the respondent may be making some effort to self-isolate, he is doing less than what may otherwise be possible. I say that because he could have had the groceries or whatever else he was buying from Walmart either delivered or picked up by a friend. That would ensure a greater degree of safety.

[26] That said, self-isolation is not part of the current public safety protocols. I am reluctant to make an order that the respondent father take measures beyond those protocols given his very limited income.

e) The best interests of the children

[27] In summary, it appears that the respondent father may have initially underestimated the seriousness of the COVID-19 crisis. That said, it appears that he may well now understand its seriousness.

[28] On the other hand, while the applicant mother appears to have appreciated the seriousness of the crisis early on, it appears that the potential for the children to be exposed to the virus may possibly be greater at her house than at the respondent father’s house at this point in time.

[29] I say that because the applicant mother also leaves the house to buy groceries. In addition, her boyfriend is coming and going from work every day. That clearly creates risk of the virus being brought into the children’s home. Better evidence as to the risks of exposure related to the boyfriend’s employment would have been helpful.

[30] In conclusion, under the circumstances, it is impossible for me to know which house the children are safer in. It follows that the existing court order ought to remain in place and that the father’s motion must succeed.

[31] That decision is based in part upon the undertaking to the court by both parents to follow public safety protocols in the future. Presumably, they each love their children enough to do so without further intervention from the court. Notwithstanding, in the interests of ensuring the safety of the children, I find it appropriate to make an order that in the event either fails to do so in the future, the matter may be brought back before the courts for reconsideration.

2) Police enforcement

[32] Having reviewed the evidence, and with the benefit of argument from counsel, I conclude that the occasion on which the children went to a park likely occurred after the respondent father’s undertaking of March 20, 2020 not to take the children out of the house. It most likely occurred a few hours later. It follows that there is likely some merit to the applicant mother’s argument that she could not trust the respondent father. I make the following observations about those concerns.

[33] The first, and perhaps most important, is that the applicant mother should not have resorted to self-help notwithstanding those concerns. She should have come to the courts and requested a variation of the current access order. Self-help is never tolerated by the courts. Court orders are, as the name implies, orders and not suggestions.

[34] The second is that police enforcement is a remedy of last resort. Children can be seriously traumatized by having a police officer come into their home and take them away. Children should always feel safe in their homes.

[35] That is not to say that police enforcement orders are never appropriate. There are circumstances where a mother or father may make such an order necessary by repeated failures to follow clear court orders. I do not find the circumstances of this case warrant a police enforcement order at this particular point in time. That could, of course, change if the applicant mother again fails to comply with a current access order.

C. Order

1) Access

[36] The access of the children Serena Hurst, born December 29, 2008, and Chloe Hurst, born November 1, 2013, to their father the respondent, Kevin Brian Hurst, shall continue in accordance with the order of Hebner J. made November 14, 2018. For greater certainty, that is alternate Fridays from 5:30 p.m. until Sunday at 5:30 p.m., recommencing May 29, 2020. The applicant mother shall drop off and pick up from the father’s home provided that the father stays in the house and she does not go up to the house or go more than three feet from the car. In the event that the applicant mother does not have access to a working vehicle, the respondent father shall be responsible for transportation with a third party under the same terms.

2) COVID-19 protocols

[37] Both parties are to observe all public safety protocols in place from time to time. In the event that either fails to do so, the other party may bring this matter back for reconsideration. Although I am not seizing myself of the matter, I would be prepared to hear any reconsiderations made necessary as a result of a party’s failure to follow the public safety protocols in place from time to time, provided the trial co-ordinator is reasonably able to schedule the matter before me.

3) Costs

[38] On the record before me, I do not find this to be an appropriate case for costs. I say that because notwithstanding the conduct of the applicant mother was unilateral, she did have some basis for concern. That is because of my finding above that the respondent father likely failed to follow the agreed-upon protocol with respect to the children going to the park after he had undertaken not to bring them. Said another way, but for the applicant mother’s actions the children may have been further exposed to unnecessary risks from the respondent father.

[39] In the event that either party disagrees with my initial observation above and in the event that the parties are unable to agree on costs within seven (7) days, then costs submissions shall be in writing on the following basis:

1. The respondent’s counsel shall serve costs submissions upon the applicant’s counsel within fourteen (14) days. Such written argument shall be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the respondent shall be deemed to have waived his right to do so.
2. The applicant’s counsel shall have a further ten (10) days to provide a response to counsel for the respondent. Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the applicant shall be deemed to have waived her right to do so.
3. Counsel for the respondent shall have five (5) further days to provide a reply to counsel for the applicant. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the respondent shall be deemed to have waived his right to do so.
4. Once all of those steps have been completed, council for the respondent shall provide all the submissions to the court through Trial Co-ordination.
5. The costs submission shall be double-spaced and use a “Times New Roman” font no smaller than 12 pitch. All references to the length of submissions exclude Bills of Costs and Costs Outlines and any Offers to Settle.

“Electronically signed and released by Bondy J.” Christopher M. Bondy Justice

Released: May 26, 2020