Court File and Parties

COURT FILE NO.: F1492/14-01 DATE: May 28, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Alexander Earnest, applicant AND: Brittany May Pichette, respondent

BEFORE: MITROW J.

COUNSEL: Alexander Earnest in person Brittany May Pichette in person

HEARD: May 27, 2020 by teleconference

Endorsement

[1] The applicant father and the respondent mother are the parents of Hailey, age 11.

[2] The respondent brings this urgent motion pursuant to the notice on this court’s website regarding the procedures to be followed during the suspension of normal court operations as a result of COVID-19.

[3] The respondent’s motion resulted from the applicant’s failure to allow the respondent to have alternate weekend access with the child.

[4] I find there is urgency justifying the respondent’s motion.

[5] The respondent seeks immediate reinstatement of the alternate weekend access plus make-up access weekends for the three alternate access weekends that were missed.

[6] For reasons that follow, the respondent’s motion is granted. The order below also deals with some procedural issues.

Background

A. The Existing Final Order

[7] Pursuant to the final order of McSorley J. dated July 27, 2015, the parties have joint custody of the child, with primary residence to the applicant father. Paragraph 3 of this order provides as follows:

The Respondent mother shall have generous and liberal access with the child, subject to completion of drug/relapse prevention counselling, production of clean drug tests for a period of six months, and positive participation in mental health counselling. Such access is to include alternate weekends, shared holidays and Mother’s Day. In the interim, access will be supervised by Linda Carter or alternate designated adult on alternate Saturdays at 10:00 AM until Sunday at 10:00 AM commencing Saturday, August 1, 2015.

B. Relevant Facts

[8] Each party served a brief unsigned affidavit. During the hearing of the motion, each party was affirmed and testified that the content of his or her respective affidavit was true.

[9] There is no dispute that the alternate weekend access stopped effective the weekend commencing Friday, April 24, 2020. The respondent’s next scheduled access weekend, being the Mother’s Day weekend, and the weekend commencing Friday, May 22 did not occur.

[10] There also is no dispute that access ceased because of alleged concerns relating to COVID-19 while the child would be in the respondent’s care.

[11] The respondent’s unchallenged evidence is that she works in a factory on an assembly line. The respondent explained the COVID-19 safety precautions that her employer has taken, including requiring employees to have their temperatures taken as they enter the building, requiring employees to wear masks and installation of barriers between work stations. The respondent also deposed to practicing social distancing.

[12] The applicant does not dispute the respondent’s evidence that he has other children who come and go from his home, that he goes back and forth from his girlfriend’s home and that on May 2 he took the child fishing on a boat with a friend of his.

[13] The respondent’s further unchallenged evidence was that she has fulfilled the conditions required by the final order and that, since 2016, her access has included alternate weekends.

[14] The applicant deposes that the access refusal occurred solely because the child approached the applicant with concerns relating to COVID-19, allegedly feeling unsafe if she visited with the respondent.

[15] The applicant’s brief affidavit is most clear that this was the child’s decision, that it was her idea not to attend access visits and that the applicant did not feel it was suitable to force the child to visit with the respondent given the child’s alleged expressed fears.

[16] There is no explanation by the applicant as to why it was only in late April 2020 that the child became fearful to visit her mother, given the prevalence of COVID-19 issues back at least to mid-March 2020.

Discussion

[17] A court order must be obeyed. A parent cannot use the COVID-19 pandemic as an excuse to ignore an existing order. There should be no presumption in the COVID-19 world that in-person access will be suspended: see, for example, Juergens v. Tackabury, 2020 ONSC 2852, at paras. 25-37; Ribeiro v. Wright, 2020 ONSC 1829, at para. 20; and Matus v. Gruszczynska, 2020 ONSC 2353, at para. 3.

[18] In the present case, the respondent’s unchallenged evidence demonstrates that precautions are being taken by the respondent and her employer.

[19] While the child’s reasonable views and preferences are important and should be considered by the court, the applicant’s evidence as to the child’s alleged fears in visiting her mother, appear somewhat suspect as those alleged fears arose only in the latter part of April 2020. No attempt is made by the applicant to explain why the child is allegedly fearful in visiting her mother but apparently was not fearful of going on a fishing trip on a boat with the applicant and his friend.

[20] In the circumstances, it is difficult to ascribe any meaningful weight to the child’s alleged fears, as reported by the applicant.

[21] It is the applicant’s obligation to ensure that access occurs. It is not up to the child to decide whether access occurs. The applicant should not have delegated this adult decision to the child. The applicant should not empower the child to make adult decisions. As a parent, the applicant has to employ appropriate strategies, assert parental control and make clear to the child that access will occur. In doing so, it is the applicant’s duty to project to the child an assertive demeanour in promoting access.

[22] I also take into account that the applicant did not bring a proceeding in this court to suspend access, but rather that he acted unilaterally in defiance of an existing court order.

[23] The respondent has requested a police assistance order to enforce access. I decline to make such an order at this time. The applicant now is aware of his responsibility as primary custodial parent to ensure that access occurs.

[24] However, the order below adjourns this matter back before me to ensure that access is occurring as ordered.

[25] The respondent requested that the alternate weekend access be specified to be from 4 p.m. Friday to 7 p.m. Sunday. That request is reflected in the order below, which I find to be in the child’s best interests.

Procedural Matters

[26] There is currently no outstanding court case. The respondent served a form 14B motion as a means of enforcing the final order. The respondent should have issued a motion to change, which could have included a request to specify the alternate weekend access times and also the make-up access.

[27] Given the current limited access to the courts because of COVID-19 and considering that each party filed the necessary affidavit evidence to deal with the respondent’s motion, I find that it would be appropriate and fair to both parties to deem the respondent’s form 14B motion as a motion to change, as set out in the order below. In doing so, I have considered the court’s duty to apply the primary objective to deal with cases justly: see rr. 2(2), 2(3) and 2(4) of the Family Law Rules, O. Reg. 114/99.

[28] The applicant had filed an answer. He sought an order that the weekend access be from no earlier than 5 p.m. Friday and for the child to return home no later than 5 p.m. Sunday. He also sought child support.

[29] In relation to child support, although it was not proper procedure for the applicant to file an answer in the present circumstances, I did canvass this issue briefly in the format of a case conference to assist the parties. The respondent agreed that she was working and not paying child support. It should not be necessary for the applicant, in the present circumstances, to have to bring an application to seek table amount of child support. The parties are encouraged strongly to resolve that issue on consent. For that reason, the order below includes a requirement for the respondent to provide her income disclosure, as this will assist the parties in addressing the issue of child support.

Order

[30] For reasons set out above, I make the following order:

1. The final order of McSorley J. dated July 27, 2015 is varied by the terms set out in paragraphs 2 and 3 below.
2. The respondent’s parenting time with the child on alternate weekends shall be from 4 p.m. Friday to 7 p.m. Sunday commencing Friday, June 5, 2020.
3. The respondent shall have three make-up weekends of parenting time with the child from 4 p.m. Friday to 7 p.m. Sunday being the weekends commencing Friday, May 29, 2020, Friday, June 12, 2020 and Friday, June 26, 2020.
4. The respondent’s form 14B motion shall be deemed a motion to change and the applicant’s responding affidavit shall be deemed the response to the motion to change. The requirement of each party to file a form 35.1 affidavit in the deemed motion to change is dispensed with.
5. Within 30 days, the respondent shall provide to the applicant, for the years 2017, 2018 and 2019, copies of her T1 general income tax returns, together with all slips and schedules and the notices of assessment for those years, and the respondent shall provide her three most recent pay statements from her current employer.
6. The applicant’s answer is struck but without prejudice to the applicant’s right to commence an application for child support.
7. The issue of costs of the deemed motion to change is reserved to the date set out in paragraph 9 of this order.
8. Paragraphs 1 to 6 of this order are final.
9. The deemed motion to change proceeding is adjourned before me to 11 a.m. June 2, 2020 and the trial coordinator shall forward the call-in teleconference details to the parties via email, including changing the time of the teleconference if necessary.
10. The purpose of the adjournment to June 2, 2020 includes an opportunity for the parties to provide evidence as to whether the access as ordered is occurring and to make any further order that may be necessary in the child’s best interests, including enforcement.
11. Each party may serve one additional affidavit no later than noon June 1, 2020 by email forwarded to the other party and to the trial coordinator. The affidavits are limited to two pages and shall deal only with relevant matters that have occurred since the hearing of the motion on May 27, 2020.

“Justice Victor Mitrow” Justice Victor Mitrow Date: May 28, 2020