ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-17-89840 DATE: 2020 06 01
BETWEEN:
Maha Gerges Applicant
- and -
Ayman Ayad Respondent
COUNSEL: Nhu-y Nguyen, for the Applicant David K Sherr for the Respondent
HEARD: May 27th, 2020 by teleconference.
REASONS FOR DECISION
LEMAY J
[1] This case has been before the Courts for a considerable period of time. The outstanding issues revolve around the child of the marriage, John, who is currently eleven years old. He will be twelve in October.
[2] The Respondent’s access to John is relatively limited, and has been relatively limited by an interim order that was made in November of 2017 by Bielby J. The Respondent sought to expand to overnight access in October of 2019, but this request was denied on procedural grounds by Bloom J. As a result, the Respondent’s access remains mostly as delineated by Bielby J.
[3] However, as a result of the ongoing pandemic, the Applicant has prevented John from having any access at all with the Respondent since mid-March. As a result, the Respondent has brought a motion on an urgent basis under the practice direction for an Order restoring the Respondent’s access.
[4] The matter was assigned to me, and I made a preliminary determination that the matter was urgent, at least on a prima facie basis. I directed the parties to file material, and convened a hearing by teleconference on May 27th, 2020. As part of the materials that were filed, the Applicant brought a cross-motion seeking to confirm that the Respondent’s access should be limited to video conferencing until the conclusion of the current health emergency.
[5] At the conclusion of the hearing on May 27th, 2020, I granted the Respondent’s motion and dismissed the Applicant’s cross-motion. I provided the parties with brief oral reasons. However, I also stated that complete written reasons would follow. These are those reasons.
Background
a) The Parties
[6] The parties were married in Egypt in 2002 and separated on January 9th, 2016. The Applicant mother is a doctor, and practices in Ontario. The Respondent father is currently working from home, but I did not have information on the nature of his employment.
[7] John, the child of the marriage is currently in grade 6 and, from all accounts, is a very good student. He lives with the Applicant and her parents. The Applicant’s father is 87 years old and has medical conditions including high blood pressure and high cholesterol. He has a previous history of stroke. The Applicant’s mother is 73 years old and has moderate kidney failure.
[8] The Applicant alleges that there is a history of fighting between John and the Respondent, and that the Respondent has engaged in some questionable parenting decisions with John. I do not intend to deal with most of these incidents for two reasons:
a) Most of them arose before the current consent Order and the order of Bloom J. described below. Therefore, they have been considered in setting the appropriate amount of access at least on an interim basis.
b) The parties dispute the underlying facts. It is generally difficult for a motions judge to make factual findings on a record of this nature with only written Affidavits and no cross-examinations.
[9] There is one recent issue that is of relevance to this motion, and I will address it in the section on events post-March 15th, 2020, below.
b) The Litigation
[10] The litigation commenced sometime in 2017. I do not have access to the Court file, so I do not know the extent of the proceedings between the parties.
[11] However, the record before me is clear that the Respondent brought a motion for access in late 2017. By way of a consent Order, dated November 3rd, 2017, the Applicant was to have in-person unsupervised access from 11:00 am to 5:00 p.m. every Saturday. Make-up time was to be provided for any visit that did not occur for “reasons other than the failure or the inability of the Respondent to attend”. Telephone access was to take place anytime.
[12] The Applicant failed to comply with the Order of Bielby J. As a result, a further endorsement was made by Shaw J. on January 23rd, 2018. This endorsement provided for substantial make-up time for the missed access, which was not disputed by the Applicant. Shaw J.’s order also directed that the Applicant was not to contact John during the Respondent’s access, and was not to schedule any activities for John during the Respondent’s access unless requested by the Respondent. Finally, as part of the make-up access, Shaw J. ordered overnight access to take place on at least one occasion and invited the parties to return the matter of overnight access to Court.
[13] The Respondent asserts that the Applicant still did not follow the Court orders, and refused to provide the overnight access envisioned by Shaw J. as part of the make-up time. The parties appear to have reached an agreement for expanded (but not overnight) access in April of 2019. The Applicant did not implement the terms of this agreement, and a further motion was scheduled in which the Applicant sought, inter alia, an expansion of his access, and overnight access.
[14] The motion was heard by Bloom J. on October 3rd, 2019. Bloom J. denied most of the Applicant’s requests. Bloom J.’s complete endorsement reads as follows:
- The Respondent moves to vary the interim order for access dated November 3, 2017 and made on consent by Justice Bielby of this court.
- The test for this variation requires as the first step that the Respondent demonstrate a material change in circumstances.
- The child in question will be eleven years old next week.
- The Respondent has put forward a number of bases alleged to constitute a material change in circumstances, including the passage of time, alleged repeated breaches of the order by the Applicant, and an agreement of the parties.
- The threshold of a material change of circumstances should also be considered in the context of the order of Justice Bielby having been made on consent.
- The Applicant contends that there has been no material change in circumstances demonstrated by the Respondent.
- I agree with the Applicant. Further, the Respondent sought to reframe his motion as a motion under FLR 1(8) during argument. I did not allow that recharacterization to take place, because it would have fundamentally changed the applicable legal framework in a manner unfair to the Applicant.
- If the Respondent has difficulties with the compliance by the Applicant with an order of this court, he may seek appropriate remedies. He has already availed himself on a prior occasion of FLR 1(8) before Justice Shaw of this court.
- Accordingly, I dismiss the motion at bar, save for ordering the two forms of relief agreed to by the Applicant; (1) the holiday access set out in paragraph 1(d) of the notice of motion dated September 19th, 2019 but only 11:00 a.m. to 5:00 p.m. on the days covered by this provision; and (2) 6 make-up access dates are to take place in accordance with para. 3 of Justice Bielby’s order.
[15] Bloom J. went on, in a separate endorsement to award the Applicant some costs. Although he “had regard” to the Applicant’s success, that factor had to be tempered by the fact that the Applicant’s conduct has “not been exemplary” in resolving access disputes.
[16] Two things are clear from these endorsements. First, the Respondent’s requests for changes in the access schedule were not considered on their merits. Second, even though Bloom J. agreed with the Applicant’s position on the material change in circumstances, he was of the view that six make-up dates were required and that expanded and specific holiday access was both necessary and appropriate. The fact that six additional make-up dates were required is, in my view, an indication that the Applicant was not following the Court’s orders.
[17] Subsequent to this motion, John was sick with Epstein-Barr syndrome in the fall of 2019, and missed a number of access visits as a result of this illness. However, John was recovered enough from this illness that he was able to travel with the Applicant on their annual trip to Egypt for several weeks at the end of 2019. He then missed several more access visits.
[18] The Applicant now alleges that John’s bout of Epstein-Barr syndrome along with a number of illnesses that he had as a young child makes him immunocompromised and at higher risk for catching COVID-19. No independent medical evidence is advanced to support this claim.
[19] It should also be noted that the trip to Egypt prevented the Respondent from having the holiday access that Bloom J. had ordered in October of 2019. This holiday access included three consecutive days that were never granted. It is not clear to me on the face of the materials whether these “consecutive days” included overnight visits. That is an issue that we will revisit if the parties are not able to agree on the make-up time. No make-up time has yet been scheduled, and at this point the Applicant’s position is that while some make up time is warranted, none should be scheduled until the pandemic is over.
[20] As a result of these events, the Respondent has again raised the issue of missed access visits in the time period between Bloom J.’s order and March 15th, 2020. These missed visits are part of the remedial relief that the Respondent is seeking on this motion. There is no real explanation on the record before me as to why those visits were missed, other than the Applicant was travelling with John over the winter holiday and John was sick for part of the time. There may be some explanation forthcoming if the parties cannot agree on the calculation of the make-up time.
[21] After the motion before Bloom J., the Respondent sought a conference in December of 2019. The Applicant was, as mentioned, travelling to Egypt and was unavailable. A conference was held in January of 2020, and the matter was placed on the trial list for a “week of” trial in November of 2020.
c) The Events Since March 15, 2020
[22] On March 28th, 2020, the Respondent arrived to pick up John and John did not come out to the car. The Respondent then telephoned John and was told that John was not allowed to come out because of COVID-19. The Respondent then asked to speak to the Applicant. At this point, the version of events varies. The Respondent states, in his Affidavit, that the Applicant took the phone and hung up without a word.
[23] The Applicant has a very different version of events. In her Affidavit, she states:
Since March 28, 2020, there has been no in-person access. On that day, by phone call, when the Respondent came to pick up John, I expressed to him my safety concerns with access due to COVID-19. In particular, I was deeply concerned for my parents and John’s health and safety. The Respondent replied to me and I verily believe, in Arabic, “everyone is on the streets, everyone is going to work, there is nothing, why are you making a big deal, God is the protector”, and he wasn’t wearing a mask. This showed me he wasn’t taking COVID-19 very seriously. His further lack of knowledge was shown on Saturday May 23, 2020, when John told me and I verily believe, that during his video access call with the Respondent, he told John they could go to the park because it is open again. This is not true. Mississauga parks are still closed. I am concerned that the Respondent will not strictly abide by COVID-19 protective measures.
[24] Based on the entirety of the record filed by the parties, I accept the Respondent’s version of these events and reject the Applicant’s. I reach this conclusion for a number of reasons, as follows:
a) The Respondent’s counsel wrote to the Applicant’s counsel on April 2nd, 2020 and provided the Respondent’s version of events on March 28th, 2020 including the Respondent’s assertion that the Applicant hung up the telephone without saying a word. Applicant’s counsel did not challenge this version of events until the motion materials were filed, although Applicant’s counsel did respond to the Respondent counsel’s letter outlining the reasons why the Applicant was not prepared to permit in-person access. Had the Applicant’s version of events been correct, I would have expected her to raise this issue through her counsel as part of her concerns in early April.
b) The Applicant hanging up the phone without a word is more consistent with her failure to communicate with the Respondent and her failure to follow court orders that has already been documented by Shaw J. and than the detailed conversation that the Applicant alleges took place.
c) More generally, the Applicant has not communicated with the Respondent through counsel during April and May. As an example, a letter was sent on April 8th, 2020 by the Respondent’s counsel. No substantive reply was ever received to that letter, but Applicant’s counsel did send an e-mail on April 22nd, 2020 asking for more time, and advising that “I have tried to contact my client without success. I would appreciate it if you could give me some more time to try and reach her before taking any further action.” Given that the Applicant’s affidavit makes it clear that she has been at home during the entirety of the pandemic, I am surprised that her counsel was unable to contact her. This lack of availability on the Applicant’s part until the motion was brought suggests that she is avoiding the issues. If the Applicant had a real belief that the Respondent was not following proper social distancing protocols during the pandemic, it is likely that she would proactively advanced this view rather than avoiding the issue.
[25] I have mentioned the April 8th, 2020 letter from Mr. Sherr. The Respondent claimed privilege over it. The Applicant included it in her materials. The parties agreed that the e-mail was privileged and should be removed from the affidavit (and the record) on the basis that the Respondent was prepared to stipulate that the Applicant may have a legitimate concern about the health of her parents as a result of the pandemic.
[26] The Applicant also alleges that, based on her conversations with John, he does not want to leave the house for access with the Respondent. I have two concerns with those alleged conversations:
a) John’s initial comments to the Respondent were that he was not “allowed” to leave the house because of COVID-19. This does not support the conclusion that it is John’s decision not to have access.
b) The Applicant has a pattern of failing to provide even the minimal access that was ordered by Bielby J. The Applicant’s assertions that John does not “want” access because he is scared of COVID-19 must be considered in the context of the history of this file.
[27] This brings me to the telephone access. Again, the parties have a dispute over the amount of telephone access that John has had during this time period. The Applicant states that she does not interfere with the telephone access. The Respondent, however, states that the Applicant has only been facilitating one video call per week between John and the Respondent on Saturdays and one phone call per week on Wednesdays. At other times, the Respondent states that the telephone calls are not being answered.
[28] The Applicant goes on to state that the calls are taking place on Saturdays and sometimes on Wednesdays. From this, I can infer that calls (for whatever reason) are not taking place on other days. On this point, I note that the Order of Bielby J. required telephone access was to take place anytime. Calls should not have been limited to Saturdays and Wednesdays.
[29] Each parent has outlined their current social distancing plan. The Applicant states that no one, other than her, has been out of the house for the past two months (even to exercise) and that she only goes out to grocery shop once every three weeks.
[30] The Respondent states that he lives alone and does not have visitors. He leaves his apartment, which is in a high rise condominium unit, once per day for a walk and, other than that, goes out to grocery shop once a week. He has also outlined a plan for John to remain safe travelling from his car into the Respondent’s apartment. The Respondent expresses concern about the fact that John has not been out of the house, even to exercise, once in the past three weeks.
Issues
[31] Based on the foregoing facts, the following issues need to be resolved:
a) Is the Respondent’s motion is urgent within the meaning of the practice direction? b) Should the Applicant’s motion be heard? c) Should access be restored to the Respondent?
[32] I will deal with each issue in turn.
Issue #1 - Is the Respondent’s Motion Urgent?
[33] Yes.
[34] The Applicant argued that the motion was not urgent because it did not meet the test set out by Kurz J. in Thomas v. Wohleber (2020 ONSC 1965). That test, which has been adopted in numerous cases, requires a consideration (at para. 38) of four factors:
a) The concern must be immediate, and not one that can await resolution at a later date; b) The concern must be serious in that it must affect the health and/or economic well-being of the parties or their children; c) The concern must be definite and material rather than speculative; d) The concern must be clearly particularized in evidence, and there must be examples of how it reaches the level of urgency.
[35] It must also be remembered that the list of urgent matters outlined by the Chief Justice in the practice direction is not exhaustive, and that the motions judge has some discretion as to what constitutes an urgent matter (see Jeyarajah v. Jeyamathan 2020 ONSC 2636 and Kostyrko v. Kostyrko 2020 ONSC 2190).
[36] In this case, counsel for the Applicant argues that the motion is not urgent because it does not meet the first two criteria set out in Thomas. In support of this argument, counsel for the Applicant argues that the Respondent and John have regular and meaningful contact through video calls. Therefore, the Applicant argues that the concern about a lack of in-person access is neither immediate nor serious.
[37] Counsel for the Applicant also argues that the decision in Kostyrko, supra is distinguishable because there is no final order in this case. Instead, the parties are still in litigation. I reject this assertion. Regardless of whether there is a final Order in this case, there is a longstanding order setting out the terms of the Respondent’s access. In the motion before Bloom J., the Applicant used the existence of that Court order to preclude further overnight access to the Respondent. The mother has resorted to “self-help” measures in order to nullify that order in spite of her previous reliance on that order to limit the Respondent’s access.
[38] As Bale J. noted in Brazeau v. Lejambe (2020 ONSC 3117), there is a large body of case-law that supports the view that a party’s purposeful obstruction of access and failure to support the ongoing parent-child relationship meets the urgency requirements set out in the notice to the profession.
[39] I should briefly touch on two of the Applicant’s other arguments. First, the argument that video conferencing is sufficient can be briefly dealt with. There is no substitute for in-person contact, especially between parents and children. Video conferencing is a poor substitute for that in-person contact. As a result, I reject the Applicant’s argument that this contact is anywhere near as meaningful as in-person contact would be. In addition, one of the problems with video conferencing is that the Applicant can be present for the conversations and can listen in on them.
[40] Then, there is the argument that the lack of in-person access is not a serious detriment to John’s health or well-being. Again, I reject that argument. A healthy relationship with both parents is important to a child’s development. John is 11 and at a critical stage in his development. As a result, access with his father at this key point in his life is a serious issue. This is especially true when there is no indication as to when the pandemic will end, or when social distancing rules will be relaxed. In essence, the Applicant is arguing that an indefinite suspension of in-person access of a parent to an eleven year old child is not a serious matter. For the reasons set out earlier in this paragraph, that position is not sustainable.
[41] In addition, counsel argues that I should apply the holding in Douglas v. Douglas, an unreported decision. In the Kostyrko decision, I spent some time explaining why I preferred the reasoning of Diamond J. in C.Y. v. F.R. (2020 ONSC 1875), a case decided before Douglas. The trend in the case law as summarized by Bale J. in Brazeau fortifies me in my conclusion that the approach adopted by Diamond J. is the correct one.
[42] The matter is urgent within the meaning of the practice direction.
Issue #2 - The Cross Motion
[43] The Applicant has brought a cross-motion, essentially asking the Court to regularize the lack of in-person access for the course of the pandemic. This motion is the other side of the Respondent’s motion. In effect, if I am not going to grant the Respondent’s motion, I will end up providing relief in much the same terms as are set out in the Applicant’s cross-motion. In light of that fact, I determined that the arguments relating to the cross-motion should be addressed as part of my consideration of the Respondent’s motion.
[44] There are two observations that should be made about the Applicant’s cross-motion. First, addressing the issues raised by the cross-motion should not be seen as an approval of the procedure used to advance it. Cross-motions may be a regular feature of the motions lists in family law Courts. However, under the practice direction, those cross-motions are subject to the same principles of urgency that apply to the initial motion.
[45] In other words, generally a notice of cross-motion should not be served or filed until leave is granted by a triage judge in the same way that the original motion was listed for hearing. To permit otherwise would be allowing parties to circumvent the practice direction.
[46] Second, if the Applicant believed that the relief she was seeking was urgent, she should have brought this motion at the end of March, when she began to unilaterally withhold the Respondent’s access with John. Bringing this type of cross-motion well after the fact does not assist the Respondent in regularizing her unilateral breach of a Court order. It remains a unilateral breach of a Court order.
Issue #3 - Should the Orders of Bielby J. and Bloom J. Be Enforced?
[47] Yes.
[48] The Applicant advances a number of reasons why John’s access to the Respondent should be limited to video conferences for the duration of the pandemic. I will address each issue in turn. In addressing all of these issues, I am cognizant of the fact that it is John’s best interests that are paramount.
[49] First, the Applicant points to the fact that her parents are elderly, and that they are very much at risk if they contract COVID-19. I accept that this is a justifiable concern for the Applicant. However, without more it does not justify cancelling in-person access.
[50] The Applicant should have raised this concern with the Respondent and should have discussed the Respondent’s approach to social distancing with him. I am aware that the Applicant alleges that she had a conversation with the Respondent on March 28th, 2020. I have explained at paragraph 24 why I do not accept the Applicant’s version of this conversation. I am of the view that this version of events is offered by the Applicant to buttress her desire that in-person access be eliminated.
[51] Given the Respondent’s unchallenged evidence about his social distancing plans and strategies, I see nothing that would justify the cancellation of in-person access. The additional risk to the Applicant and her family of permitting in-person access with the Respondent appears to be very minimal.
[52] This brings me to the second concern advanced by the Applicant, which is John’s health. The Applicant argues that John is at additional risk from COVID-19 because of his own immunocompromised state. The evidence does not support this claim. There is nothing in the materials that I have been given to either show that a bout of Epstein-Barr syndrome or any of the other childhood illnesses that John had leaves him immunocompromised currently. There is no merit to this argument.
[53] Next, I note that ensuring parties adhere to Court orders is very important for a whole host of reasons. As Kumaranayake J. noted in Jeymathan, supra, (at para 18) “the Respondent’s decision to refuse to make the children available for in-person parenting time is a self-help remedy and cannot be condoned.” See also Skuce v. Skuce 2020 ONSC 1881 at para. 36. Engaging in a self-help remedy is exactly what the Applicant has done in this case. Further, as I have noted in the previous paragraphs, this self-help remedy is without justification and cannot be supported on the facts that are before the Court.
[54] I would also note that there is no substitute for in-person access, particularly with a child at this age. As a result, the Respondent’s motion is granted and the Applicant’s motion is dismissed.
[55] As a final matter, I note that there is a trial in this matter in November of this year, and that the Office of the Children’s Lawyer has indicated that it will be providing both counsel for John and a clinical resource. However, the OCL has been affected by the ongoing pandemic.
[56] In order to confirm whether the trial is going to be able to proceed in November, I am providing a copy of this decision to the OCL, and requesting that they update the Court and the parties as to the status of this file, and their expectations as to how this matter is going to proceed going forward. In particular information about whether the OCL will be ready for trial in November would be helpful.
Conclusion and Costs
[57] For the foregoing reasons, I confirm the following orders that were made at the conclusion of the teleconference:
a) The orders made at the teleconference were effective immediately. For clarity, an issued and entered Court order is not necessary, and these Orders are fully in force as of 3:00 p.m. on May 27th, 2020. b) The Respondent’s motion is granted, and the Applicant’s cross-motion is dismissed. c) A directive requiring the Applicant to ensure that the access terms set out in the Orders of Bielby J. and Bloom J. is to issue. d) The Office of the Children’s Lawyer is to be provided a copy of this decision and is to update the parties and the Court on whether the OCL believes it will be ready to proceed to trial for the dates fixed in November. e) The parties are to endeavor to agree on the make-up time for the lost access. I retain jurisdiction to consider the issue of the make-up time. If the parties are unable to agree on the make-up time within ten (10) days of the release of these reasons, then either side may seek a further hearing through my judicial assistant, and I will provide further directions. I am not sure if the time limit was provided at the conclusion of the case conference, but I am providing it here for the assistance of the parties.
[58] In terms of police enforcement, I have not granted that Order yet. However, I would direct the parties attention to the reasons of Bale J. in paragraph 44 of Brazeau. I am declining to direct police enforcement at this point for the same reasons. However, I am also issuing the same warning that Bale J. issued in her decision. “If the [Respondent] father is required to return this matter to Court for further enforcement for any reason including the child’s ‘refusal’ to attend, the mother is forewarned that far more drastic remedial measures will likely be ordered by the Court.” This, of course, does not apply to a dispute over the calculation or timing of make-up time, as those are still live issues.
[59] The one difference between my decision and Brazeau is that I am remaining seized with respect to this case, both to address the make-up time and to address any issues with the implementation of my other Orders.
[60] The timetable for costs was discussed during the conference call. The Respondent intends to argue that the Applicant acted in bad faith and that full indemnity costs are appropriate. In light of that position, I advised the parties that written submissions on costs would be necessary.
[61] Therefore, each party is to submit their costs submissions of no more than four (4) single-spaced pages exclusive of bills of costs and offers to settle within seven (7) calendar days after the conference call, which is June 3rd, 2020. Submissions are to be served electronically, and an electronic copy (of no more than 9.9 megabytes in size) is to be provided to my judicial assistant. Cases are to be sent by hyperlink rather than being filed electronically.
[62] Parties may provide reply submissions within no more than seven (7) calendar days after receiving the other side’s costs submissions. Those submissions are to be no more than two (2) single-spaced pages. The filing requirements are the same as set out in the previous paragraph.
[63] By filing their costs submissions electronically, parties undertake to file hard copies with the Court office when it is open for regular business again.
[64] If costs submissions are not received in these time periods, or an extension to these deadlines is not specifically sought, then there will be no costs of this motion.
LEMAY J Released: June 1, 2020