Court File and Parties

COURT FILE NO.: FS-19-96785-00 DATE: 2020-06-01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LEROY ALLEYNE Applicant/Moving Party

Ritika Narang, for the Applicant/Moving Party

- and -

TIFFANY ENNIS Respondent/Responding Party

Self-represented

HEARD: May 28, 2020, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] On the basis of urgency, the Applicant moves for leave to bring this motion. If leave is granted, he moves for sole custody of the 3-year-old child of the marriage, Ta’leah Rose Alleyne, born January 18, 2017, with specified parenting time, police enforcement, and access to the Respondent on terms that require her to observe COVID-19 health safety measures.

[2] At this time, the Superior Court of Justice’s regular operations is suspended due to the COVID-19 pandemic. The Local Administrative Judge has made a preliminary administrative determination that Mr. Alleyne’s request is urgent and that his motion should proceed. That decision was without prejudice to the Respondent’s right, at the hearing, to argue that the motion is not urgent and should not proceed.

[3] The following documents were electronically filed:

(a) Letter dated May 14, 2020, from the Applicant’s lawyer to the Court requesting the hearing of a motion on the basis of urgency; (b) The Applicant’s Notice of Motion (Form 14) dated May 15, 2020; (c) The Affidavit of the Applicant Leroy Desmond Alleyne dated May 15, 2020, and Exhibits A to C to the said Affidavit; (d) Draft Order requested, submitted by the Applicant; (e) The Affidavit of Service by Ridhima Surya Kiran dated May 16, 2020, attesting to the service of the Notice of Motion, the Affidavit, and the draft Order requested on the Respondent that day; (f) Notice to the Responding Person regarding the motion and hearing; (g) Letter dated May 18, 2020, from the Respondent to the Court; (h) Affidavit of the Respondent Tiffany Lynette Ennis dated May 22, 2020, and Exhibits A to D to the said Affidavit; (i) Draft Order requested, submitted by the Respondent.

BACKGROUND FACTS

[4] The parties were married on August 29, 2015, and separated less than four years later, on May 1, 2019. They have one child, a daughter, Ta’leah Ennnis, born January 18, 2017. Additionally, each of the parties has two children from previous relationships.

[5] The Applicant, Mr. Alleyne, is employed by the Toronto Transit Commission as a Rail Vehicle Analyzer, an essential service. In that employment, he works principally in a room where he is alone and leaves only to repair rails as needed. When he is required to repair a rail, he attends at a train and converses with the operator. On those occasions, he wears a mask, gloves, and a face shield, and maintains a six-foot distance from the operators.

[6] Mr. Alleyne is also employed delivering food for Uber Eats, which he does 1 day per week for 4 hours following his regular employment or, on his off-days from the TTC, up to 4 days. When he works at that employment, he has no contact when me makes a pick-up and, on delivery, he leaves the item at the customer’s door.

[7] The Respondent, Ms. Ennis, is employed as a customer service representative for IMCD Canada, a food chemical distributor. She has been working remotely from home since March Break.

[8] When the parties separated, the Applicant, Mr. Alleyne, moved out of the matrimonial home with his two children, who are ages 10 and 14 years old, from previous relationships. He says that from May 1, 2019, until January 2020, he spent parenting time with Ta’leah, initially on Tuesdays, Wednesdays, and Thursdays from 2:00 p.m. to 9:00 p.m. Later, from January to March 18, 2020, because of a change in his work schedule, he spent parenting time with Ta’leah on Wednesdays, Thursdays, and Fridays from 2:00 p.m. to 9:00 p.m.

[9] Ms. Ennis does not dispute that Mr. Alleyne exercised access on those days, as he describes. She states, however, that he refused to disclose his address, failed to exercise his parenting time consistently, and failed to comply with her request that he return Ta’leah to her home by 9:00 p.m.

[10] Ms. Ennis also does not dispute that Mr. Alleyne has not had access to Ta’leah since March 18, 2020. The parties differ as to the reasons why Ms. Ennis terminated Mr. Alleyne’s access and as to whether she was justified in doing so.

ISSUES

[11] This motion requires the Court to consider whether the motion is urgent and, if so, what parenting arrangement is in Ta’leah’s best interests.

POSITIONS OF THE PARTIES

[12] Mr. Alleyne alleges that Ms. Ennis calls him disparaging names in the presence of Ta’leah and their other four children.

[13] Ms. Ennis alleges that Mr. Alleyne has failed to pay her child support. Mr. Alleyne states that he has paid for Ta’leah’s day care expenses, diapers, food, clothing, and other expenses.

[14] Mr. Alleyne states that Ms. Ennis has offered different justifications as pretexts for withholding access, first stating that Ta’leah’s daycare had experienced a COVID 19 outbreak, then stating that Ta’leah’s doctor had told her to self-isolate, then stating that Mr. Alleyne had travelled to the United States, and finally stating that his workplace posed a threat of contamination to Ta’leah.

[15] Ms. Ennis states that she received an email from Ta’leah’s daycare regarding other children who were sent home from daycare on Monday March 16, 2020, with signs/symptoms of COVID 19. She states that she and Ta’leah visited a doctor’s office on March 18 and were both prescribed antibiotics. She says that he recommended that they self-isolate due to the pandemic and the message from Ta’leah’s daycare.

[16] Mr. Alleyne states that he later found out that Ta’leah’s daycare has been closed since March 13, 2020. Additionally, he states that he visited Ta’leah’s doctor, who informed him that Ms. Ennis had not visited her since COVID-19 and that she had not advised Ms. Ennis to self-isolate. Mr. Alleyne submits that Ms. Ennis has lied to justify withholding access to Ta’leah and that she is trying to change the status quo that has existed regarding access since the parties separated a year ago.

[17] Mr. Alleyne does not explicitly deny that he has travelled to the U.S., but states that the Canada-U.S. border had been closed for weeks by the time Ms. Ennis alleged that he had travelled to the U.S.

[18] Mr. Alleyne states that Ms. Ennis has demanded documents from his employer, including its COVID 19 policies, which would violate his employer’s work place policies, and has asked for his work schedules which he says she is already aware of. Mr. Alleyne says that he and his family have been exercising COVID-19 precautions and health directives as the safety of his family is important to him. He says that he has not been advised to self-isolate himself or anyone in his family.

[19] Mr. Alleyne seeks an Order granting him sole custody of Ta’leah with limited access to Ms. Ennis. Ms. Ennis seeks to restrict Mr. Alleyne’s access to Ta’leah to one hour of video calling each day from 6:00 p.m. to 7:00 p.m. Mr. Alleyne seeks access in person every Wednesday from 10:00 a.m. to Saturday at 10:00 a.m., and telephone and video-parenting every Monday, Tuesday and Sunday from 6:00 p.m. to 7:00 p.m.

ANALYSIS AND EVIDENCE

a) Findings of Fact

[20] As noted above, the parties differ as to the reasons why Ms. Ennis terminated Mr. Alleyne’s access and whether she was justified in doing so.

[21] Ms. Ennis says that she received an email from Ta’leah’s daycare regarding other children at the daycare who were sent home on Monday, March 16, 2020, with symptoms of COVID-19. She states that Mr. Alleyne exercised access to Ta’leah on March 18, but that after she was returned, Ms. Ennis took her to a doctor’s office, where she and Ta’leah were both prescribed antibiotics and the doctor recommended that they self-isolate due to the pandemic and the message from the daycare.

[22] Mr. Alleyne disputes that Ta’leah’s daycare closed on March 16^th^ for the reason Ms. Ennis has given. He asserts that he checked with the operators of Ta’leah’s daycare, who informed him that the daycare closed on March 13. He says, “I later found out that Ta’leah’s daycare was closed since March 13, 2020.” Mr. Alleyne’s assertion is hearsay and is improperly included in his affidavit as he fails to identify the source of his information, as required by Rule 14(19) of the Rules of Civil Procedure.

[23] Ms. Ennis’ evidence that the daycare closed on March 16, and that Ta’leah attended that day is the best evidence on this issue as Ta’leah was primarily in her care at the time. I accept Ms. Ennis’ evidence on this issue.

[24] Mr. Alleyne also disputes Ms. Ennis’ evidence that she attended at the doctor’s office with Ta’leah and was prescribed antibiotics and advised to self-isolate for 14 days. He states, “When I visited Ta’leah’s doctor to inquire about Ta’leah’s health, I was told by the doctor that Ms. Ennis had not visited her since COVID-19 and that the doctor had not given any such orders to Ms. Ennis.”

[25] Here again, Mr. Alleyne has improperly presented hearsay and has violated Rule 14(19) of the Rules of Civil Procedure by failing to identify the doctor who gave him this information. Ms. Ennis stated at the hearing that she attended at Dr. Jalayer Hossein’s office at the Howden Medical Clinic, 375 Howden Blvd., Unit 2, in Brampton, and that Dr. Hossein prescribed Amoxicillin. She produced the medication bottle at the hearing, and I accept her evidence in this regard.

[26] Ms. Ennis says that she passed the daycare’s message to a friend of Mr. Alleyne, who had been conveying messages between the parties since about September 2019. She disputes Mr. Alleyne’s evidence that he was denied access on March 18^th^. She states that the daycare closed on March 16^th^, and that she began working from home on March 17^th^. She states that she did not deny Mr. Alleyne access until March 18^th^. I find that nothing turns on the issue of whether or not Mr. Alleyne exercised access on March 18^th^. I accept that Ta’leah had flu-like symptoms and was prescribed medication and that Ms. Ennis was justified in self-isolating for 14 days, especially as Ta’leah had an underlying condition of asthma which made her especially vulnerable to complications from COVID 19 infection.

[27] Ms. Ennis completed her prescribed 14-day self-isolation period on April 1, 2020. I find that at that point, she ceased to be justified in denying Mr. Alleyne access to Ta’leah. Ms. Ennis apparently demanded documentary evidence of Mr. Alleyne’s employer’s COVID 19 policies and procedures, but Mr. Alleyne says that these are contained only in internal memoranda which he is not permitted to disclose outside of his employment. I accept Mr. Alleyne’s evidence regarding the precautions his employers have implemented and his adherence to them.

[28] Ms. Ennis additionally demanded evidence from highway authorities in the United States that Mr. Alleyne had not travelled to the U.S. Mr. Alleyne should not, in the circumstances of the present case, be delayed in exercising access based on his failure to produce such records. I take judicial notice of the fact that travel across the Canada/U.S. border has been restricted since March 13, 2020, and I accept Mr. Alleyne’s evidence that he has complied with those restrictions and has not travelled to the U.S.

[29] Mr. Alleyne’s failure to pay child support to Ms. Ennis does not justify her withholding access to Ta’leah. The two issues are independent of each other. On the other hand, there is no reason why the child support that, on the admitted facts, Ms. Ennis has been entitled to receive from Mr. Alleyne since they separated should not be accorded as much urgency as the access Mr. Alleyne has been entitled to receive to Ta’leah. It was so held in Saperia v. Vlasiu, 2020 ONSC 2301, at para. 2.

[30] Ms. Ennis is self-represented. If she were represented by a lawyer, I have no doubt that she would have made a cross-motion for child support so that the Court could address both issues simultaneously. The determination of urgency is intended to be simple and expeditious. It is not intended to create a motion unto itself. See Onuoha v. Onuoha, 2020 ONSC 1815, at para. 14. In this case, it is evident from the admitted facts that there is urgency. Given the volume of urgent family matters coming before the courts at this unprecedented time, and the fact that Ms. Ennis is self-represented, I will give directions for the resolution of the child support issue.

b) Urgency

[31] I am satisfied that Mr. Alleyne’s motion is urgent and should be heard.

[32] Justice Faieta, in Chahine v. Martins, 2020 ONSC 1825, declined to re-consider the issue of urgency decided on a preliminary basis by the Local Administrative Judge and waived the requirement of a Case Conference, under Rule 14(4.2) of the Rules of Civil Procedure, following the decision in Endicott v Endicott, 2015 ONSC 3180, in which the requirement for a conference was waived in similar circumstances. Justice Faieta held that the Respondent’s unilateral termination of a long-standing parenting arrangement gave rise to urgency, notwithstanding the absence of a court order or signed agreement formalizing the arrangement.

[33] Justice McSweeney, in Medu v Medu, 2020 ONSC 2465, stated:

[4] This court has ruled consistently during this period of COVID-19 that continuation of the parenting schedule status quo, as much as possible, to maintain stability and predictability in a time of unprecedented challenges for families, is particularly important to children’s well-being. The Respondent keeping the children from their mother for a month is a significant departure from their status quo.

[5] On the material before me, I therefore conclude that this motion may be heard as a matter of urgency relating to the best interests of the children. This is a category of urgency recognized in the Notice to the Profession released by the Chief Justice of the Superior Court of Justice dated March 15, 2020 (and as further amended effective April 6, 2020).

[34] In the present case, Ta’leah has been deprived of access to her father for over two months, only the first fourteen days of which were justified by medical advice. For these reasons, I find that there is urgency that justifies the hearing of the motion at this time.

c) What parenting arrangement is in Ta’leah’s best interests

[35] I find that it is in Ta’leah’s best interests that Mr. Alleyne’s access to her be restored. Justice Faieta, in Chahine v. Martins, held that it was in the interest of the parties’ four-year-old child that the parenting agreement that existed before COVID 19 continue, as the Respondent had presented “no evidence to counter the Applicant’s repeated assertion that he has complied with all COVID 19 protocols.” I make a similar finding in the present case.

[36] There is no evidence before me that justifies expanding Mr. Alleyne’s access beyond that which he exercised before March 18, 2020. I am not satisfied that, at the present time, his employment obligations would enable him to exercise effective care of Ta’leah beyond those hours.

[37] I accept Ms. Ennis’ evidence that there have been problems with the parenting schedule that prevailed before March 18^th^. However, Mr. Alleyne has indicated a willingness to accept terms that should address those problems. In particular, he is agreeable to forfeiting his access on a given day if he is 15 minutes late in arriving. Similarly, he should forfeit the next day’s access if he is more than 15 minutes late returning Ta’leah. If he misses two consecutive days of access, Ms. Ennis should be entitled to return the motion to Court for variation, without the necessity of again establishing urgency.

[38] Some of the problems the parties have experienced with the parenting schedule can be attributed to the lack of effective communication between them. Mr. Alleyne has blocked Ms. Ennis from communicating with him.

[39] I urge the parties to reflect on the comments by Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829, paras. 27-28:

27. 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.

28. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

[40] Mr. Alleyne requests an Order directing the parties to communicate by means of the Application, My Family Wizard. Ms. Ennis preferred an alternative Application that is free, but Mr. Alleyne agreed to pay the expenses of both parties associated with My Family Wizard, which was agreeable to Ms. Ennis.

[41] Regarding police enforcement, McSweeney J. stated in Medu v. Medu, 2020 ONSC 2582:

[22] With respect to such relief, I observe that recent COVID case law has only served to underscore the reluctance of judges to routinely include police enforcement clauses in child custody and access orders. Police involvement, except as a last resort, is to be avoided as it can be psychologically harmful to children and to their family relationships. In the COVID pandemic, it can potentially increase the risk of the children and their family to exposure to the COVID-19 virus.

[42] At the time when the events in the present case occurred, there was no court order or signed agreement formalizing the parties’ parenting arrangement. For the reasons set out above, I have found that Ms. Ennis was justified, initially, in suspending the parenting arrangement and withholding access from Mr. Alleyne to Ta’leah. Under these circumstances, and the reasons given by McSweeney J. in Medu, I find that an order for police enforcement would be premature at this time.

CONCLUSION AND ORDER

[43] On the basis of all these considerations an interim order shall issue as follows:

1. Leave is granted to the Applicant, Leroy Desmond Alleyne (“Applicant”), to bring his motion on the basis of urgency.

2. Service of the motion materials on the Respondent, Tiffany Lynette Ennis’ (“Respondent”) by e-mail is hereby validated.

3. During the currency of the Chief Justice’s direction regarding COVID-19 restrictions on this Court’s operations, affidavits in this matter may be commissioned by telephone or videoconference.

4. Beginning June 1, 2020, the Applicant/father (“Applicant”) Leroy Desmond Alleyne, shall have access to the child of marriage, namely, Ta’leah Rose Alleyne, born on January 18, 2017 (“the child”), as follows: (a) Every Monday, Tuesday, Saturday, and Sunday, between 6:00 p.m. and 7:00 p.m. Ta’leah shall have video/telephone access to the Applicant, using cell phone of the Respondent or using “Facetime” on a laptop. During this time when Ta’leah is not in daycare, the parent with care of the children will assist Ta’leah, each day, to initiate one (1) Video call each day. No call is required on transfer days. (b) In person parenting time: Every Wednesday, Thursday, and Friday, from 2:00 p.m. to 9:00 p.m. (c) The Applicant shall have such other in-person and video/telephone access as the parties may agree upon in writing; (d) Mr. Alleyne shall pick-up and drop-off Ta’leah at Ms. Ennis’ home.

5. Mr. Alleyne shall notify Ms. Ennis of the address where he will be exercising access to Ta’leah and the telephone number where he can be reached during such access.

6. If Mr. Alleyne is more than 15 minutes late in arriving for access, he shall forfeit access that day. If he is more than 15 minutes late in returning Ta’leah, he shall forfeit the next day’s access. If he misses two consecutive days of access, Ms. Ennis shall have leave to return this motion to the Court, without having again to establish urgency.

7. Before Mr. Alleyne’s in person access resumes, he shall supply video surveillance equipment to Ms. Ennis, at his expense, to monitor his arrivals and departures.

8. Neither party shall schedule activities for Ta’leah during the other parent’s parenting time.

9. Unless otherwise agreed by the parties, they shall limit their communication to My Family Wizard, which the parties shall immediately subscribe to, at Mr. Alleyne’s expense. All messages exchanged will focus exclusively on topics relating to the children and their schedules and well-being. Each party will log in to My Family Wizard at least once a day and will respond to messages from the other parent within 24 hours from the time the message was sent. Both parties have assured this court and demonstrated that they are familiar with the Our Family Wizard program, including the mobile app. They are both able to send, receive, review and reply to messages from the other parent as required.

10. Unless otherwise agreed in writing by the parties, they shall only attend at each other’s residence for scheduled pickups and drop-offs and shall remain in their vehicles in front of the home. The parties shall not communicate with each other during access exchanges or otherwise in the presence of the children.

11. Both the Applicant and the Respondent shall fully comply with all relevant COVID-19 safety measures as may be in effect from time to time, as set out in the Canadian Public Health Advisories, or by the City of Toronto and/or the Province of Ontario, including but not limited to ensuring that all members of their households regularly and thoroughly clean their hands and clean frequently touched surfaces with an alcohol-based rub or with soap and water, practice physical distancing, and ensuring that all members of their households avoid touching their face. Each party shall immediately notify the other if they, or Ta’leah, or any third-party having contact with the children, exhibit any signs of infection.

12. For as long as any Government imposed safety precautions prevail, Mr. Alleyne shall additionally, wear a mask and gloves, and a minimum six-foot distance between him and any other person at his places of employment. In the event he fails to do so, Ms. Ennis shall have leave to return the motion to Court without the need again to establish urgency.

13. As soon as Ta’leah’s daycare resumes operation, Ms. Ennis shall restore Mr. Alleyne as a contact with Ta’leah’s daycare and provide proof to Mr. Alleyne that she has done so.

14. Ms. Ennis has leave to make a motion, on an urgent basis, for an Order requiring Mr. Alleyne to pay child support to her. For this purpose, the parties shall conform to the following timetable: (a) Mr. Alleyne shall forthwith produce to Ms. Ennis his income tax return for 2018 and 2019, with all schedules and attachments, and his Notice of Assessment and Re-Assessment for 2018. (b) Ms. Ennis shall, by June 15, 2020, serve her Notice of Motion, supporting affidavit, and draft Order requested, on Mr. Alleyne by email at narangritika@ymail.com, and file with the Court at the email address listed below. scjtrialofficebrampton@ontario.ca, with a copy to my judicial assistant, sherry.mchady@ontario.ca (c) She shall also email proof that she has served this material on Mr. Alleyne by email. (d) If any affidavit cannot be sworn or affirmed before a Commissioner for taking oaths (including any lawyer or paralegal licenced to practice in Ontario), the person making the affidavit must participate in the video or teleconference with the presiding judge and be prepared to swear or affirm at that time. (e) Ms. Ennis shall also provide to Mr. Alleyne and the court, by email, a hyperlink or the name and citation of any court case that she intends to refer to. (f) Mr. Alleyne shall immediately confirm to Ms. Ennis and the Court, by email, that he has received Ms. Ennis’ motion material. (g) If Mr. Alleyne wishes to oppose the motion or argue that it does not raise urgent issues, he shall, by Friday, June 22, 2020, serve on Ms. Ennis by email at tiffany_ennis01@hotmail.com, and file with the Court at the email address listed above, your responding affidavit, any exhibits, and the draft Order you are requesting. You shall also email proof that you have served this evidence on the moving party by email. (h) If any affidavit cannot be sworn or affirmed before a Commissioner for taking oaths (including any lawyer or paralegal licenced to practice in Ontario), the person making the affidavit must participate in the video or teleconference with the presiding judge and be prepared to swear or affirm at that time. (i) Mr. Alleyne shall also provide to the moving party and the court, by email, a hyperlink or the name and citation of any court case that he intends to refer to. (j) a video conference/teleconference to hear the motion has been arranged for: Tuesday, June 30, 2020, at 10:00 a.m. (k) If either party has a compelling reason why he or she cannot be available at this time, she/she shall advise the Court immediately, indicating alternative times when they are available. (l) The call-in information for the video conference or teleconference will be provided to you by email in advance. (m) If Mr. Alleyne does not respond to the motion and request to proceed on an urgent basis, an order may be made in his absence. (n) If the parties reach a settlement of the issue of child support and do not require a motion to be heard, they may file Minutes of Settlement and a draft Order, approved as to form and content, with the court, at the email addresses listed above, in which case the further steps for the said motion set out in this Order shall be dispensed with.

15. There shall be no costs paid for this motion.

Price J.

Released: June 1, 2020