Davis v. Veloza, 2020 ONSC 3306

Court File and Parties

COURT FILE NO.: FC-17-629 DATE: 05/27/2020 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carolyn Emily Davis, Applicant AND: Jim Veloza, Respondent

BEFORE: Honourable Madam Justice M. Fraser

COUNSEL: Duncan A. R. Crosby, Counsel for the Applicant Self-represented Respondent

HEARD: May 26, 2020

Endorsement

1There are two motions before me. Both motions have been brought by the Respondent, Jim Veloza (“Veloza”).

2The first is a motion brought by Veloza to have the Applicant, Carolyn Emily Davis (“Davis”), found in contempt of the Order of Justice Robert Selkirk dated March 22, 2018 (the “Final Order”). He alleges that she has failed to comply with the terms of access set out therein in that there were weekends during September 2019, January 2020, and February 2020 when she was to bring the children, Odin James Veloza born March 30, 2014 (“Odin”) and Kenzi Emalyn Veloza born November 25, 2015 (“Kenzi”) to Mississauga and she refused. He additionally alleges that Davis has not paid him the $70.00 per visit to Pembroke as contemplated by the order and that she now owes him twenty-three payments (23 x $70.00 = $1,610.00).

3The second is an urgent motion brought by Veloza subsequent to the suspension of the regular operations of the Ontario Superior Court of Justice due to the COVID-19 pandemic. He is asking for an Order requiring Davis to comply with the Final Order as it pertains to his access to Odin and Kenzi. More particularly, and as a result of the COVID-19 pandemic, Davis has refused to permit Veloza’s in person access to occur. As a result, Davis has not seen his children in person since March 21, 2020.

4Due to the COVID-19 pandemic and the suspension of the regular operations of the Ontario Superior Court of Justice, this matter was heard by way of telephone conference call.

Contempt Motion

5Owing to the serious nature of the sanctions that can be imposed, contempt findings in family proceedings should be made sparingly and as a last resort when attempts to resolve problems (ie. access) can not be resolved through other means. The particulars of the breach must be clearly laid out and proven beyond a reasonable doubt.

6In this instance, I conclude that the allegation that Davis failed to abide by the terms of access in the Final Order has not been sufficiently particularized by Veloza. It is unclear, on the evidence, what exactly occurred to cause the missed weekends in September 2019, January 2020 or February 2020. It is not possible, on the evidence presented, to conclude that Davis intentionally failed to abide by the terms of the Final Order on those occasions.

7With respect to Veloza’s assertion that Davis failed to comply with the Final Order as it pertains to the payments to Veloza of $70.00 each time he travels to Pembroke for access, this aspect of the Final Order consists of a “payment order” which is expressly excluded from the application the contempt provisions set out in Rule 31 of the Family Law Rules, O. Reg. 114/99.

8I note that while Davis has not paid the mandated $70.00 per trip to Pembroke, Veloza has not been paying the ordered child support to Davis either. According to Davis, he is in arrears to the extent of $10,000.00 approximately. Veloza has not yet brought a motion to vary the child support payable by him. Given he is unemployed, he may legitimately be entitled to a decrease in the quantum of child support payable. It would seem that Davis’ $70.00 payments to Veloza was predicated upon the understanding that Davis would be receiving this support. The payment arrangements in the Final Order must be viewed as a whole. In this respect Davis’ ability to pay the sum would seem inextricably linked to the understanding that she would be receiving child support payments from Veloza. As such, even if the non-compliance alleged did not involve a “payment order”, I would not be prepared to make a finding of contempt, in any event, with respect to this aspect of Veloza’s motion.

Urgent motion for resumption of access

9Veloza asks that his access with Odin and Kenzi as set out in the Final Order be resumed.

10Veloza appears, with a few exceptions, to have consistently exercised the access set out by the Final Order. This access was to occur every second weekend. One access weekend per month was to take place in Pembroke. The second access weekend was to take place in Mississauga and coincide with a long weekend (either a Friday or Monday to be a holiday or PA day).

11Davis has refused Veloza weekend access since March 21, 2020.

12She bases this refusal on the fact that, while she is working, she is relying upon her parents to care for the children. Her parents have been providing care for the children given she works full time (35 to 40 hours per week) at the Dairy Queen.

13Davis’ mother is 63 years old and suffers from a thyroid condition. Her stepfather is 66 years old. She maintains that her parents fear that there is a risk that the children will bring the COVID-19 virus into their home if they are travelling to Mississauga for access visits or exercising access with Veloza.

14My analysis begins with the presumption that the Final Order should be respected and complied with. As stated by Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829: “(T)here is a presumption that the existing order reflects a determination that meaningful personal contact with Veloza is in the best interests of the child(ren).”

15In this instance, there is an existing order in this matter which provides for the children to be in Veloza’s care for two weekends per month as part of a joint custody regime.

16I presume that the existing parenting arrangement and schedule should continue as this is what was determined to be in the best interests of Odin and Kenzi. This is only subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to.

17Davis has not provided any evidence to suggest that Veloza is not abiding by the public health directives respecting self isolating and/or physical distancing or that he is not taking the appropriate precautions to reduce his risk of exposure to the virus as recommended by the public health authorities.

18In these unprecedented times, it is natural to be stressed by the recent changes the recent COVID-19 pandemic has wrought on our daily routine. We naturally seek to protect those in our care during such times. This necessarily includes a natural desire to keep our extended family safe as well.

19Veloza is presently unemployed. He would seem to be less exposed to the risk of contracting the virus than Davis, who is interacting with the general public on a daily basis as a result of her employment. I do not accept, therefore, that Veloza’s contact with the children exposes them (and by extension, Davis or her parents) to a risk which justifies suspending his weekend access.

20A parent is not permitted to simply engage in self help, or to interpret public health directives as a license to terminate parenting time (See: Almadi v. Kalashi, 2020 ONSC 2047). If Davis feared that the current access schedule was no longer in the children’s best interests or that it should be compromised for the sake of the health of a member of her extended family, then it was incumbent on her to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID-19 protocols and which would suggest he is exposing others to risk. It would then be expected that she initiate a motion to change the order. She did not do so.

21To be clear, as the parents of Odin and Kenzi, it is expected that both parties will take the appropriate steps and likewise insist that all persons within their family unit take whatever steps are reasonably necessary to ensure that the children and other members of the family are not unnecessarily exposed to COVID-19 risks. There is nothing in the material before me at present that would suggest this is not being done.

22As aptly noted by Justice Pazaratz in Ribeiro v. Wright:

Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day. a. The disruption of our lives is anxiety producing for everyone. b. It is even more confusing for children who may have a difficult time understanding. c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner. d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance. e. Right now, families need more cooperation. And less litigation.

23Children need the love, guidance and emotional support of both parents, now more than ever. I do not see any basis to interfere with the terms of the Final Order. The parenting arrangement which was in place with respect to Odin and Kenzi should continue.

Order

24A temporary order shall issue as follows:

1. Veloza’s contempt motion shall be dismissed.
2. The access regime in place prior to March 21, 2020 between the parties shall resume. All terms of the Order of Justice Selkirk respecting Veloza’s access shall continue. This Order shall be without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise. Further, Veloza may return this motion for further disposition in the event Davis does not begin to comply with the access schedule set out in the Final Order.
3. Davis shall not be obligated to pay the $70.00 per trip to Pembroke to Veloza while Veloza is in arrears of child support. This is without prejudice to Davis’ obligation for past and future payments being determined more fully in conjunction with any application to vary the child support obligation.
4. In the circumstances, and given the divided success achieved by the parties, it would seem that each party should bear their own costs. If either party wishes to argue for a different result and wishes to bring to my attention any other relevant information, they may do so by submitting their written submissions within 10 days times to PembrokeSCJTrialScheduling@ontario.ca. The other party shall then have 10 days to respond to any such submissions. If no submissions are received within 10 days of the release of these reasons, there shall be no order as to costs.