Court File and Parties
Court File No.: FC-20-086 Date: 2020-06-03
Superior Court of Justice - Ontario
Re: Hayden Mitchell Deveaux, Applicant And: Evelyn Eliana Najnudel, Respondent
Before: Madam Justice Catrina Braid
Counsel: Terrah Smith, for Applicant Ana Kraljevic, for Respondent
Heard: In writing
THIS MOTION HAVING BEEN HEARD IN WRITING PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK
Endorsement
I. Overview
[1] Hayden Deveaux and Evelyn Najnudel are the parents of an 18-month old girl named Aria Bernie Emmersyn Deveaux (“Aria”), born November 30, 2018. In this endorsement, I shall refer to the parties as the mother and the father. With respect to other family members, I shall refer to them by their relationship to Aria.
[2] The parties separated approximately 6 months ago. The mother moved to Toronto with Aria to live with the maternal grandmother and aunt, and the father moved in with the paternal grandparents in Breslau, Ontario. The mother does not approve of the father’s plan to bring Aria to his current home, so the father has had very limited parenting time with Aria since the separation. He has brought a motion to have the court determine an interim parenting schedule.
[3] The parties consented to this motion being argued in writing. I reviewed the original material filed and released an endorsement on May 21, 2020, directing the parties to file additional evidence on the motion as I was unable, on the materials filed, to make a determination in the child’s best interests. I have now received and reviewed that evidence.
II. Analysis
A. What Parenting Schedule is in the Best Interests of the Child?
[4] These are exceptional and unusual times for everyone. A pandemic has been declared by the World Health Organization. Our world, as we know it, has changed dramatically. Directives from various levels of government are being declared on a constant basis.
[5] This should not result in a widespread suspension of in-person parenting time between a child and a parent: Chrisjohn v. Hillier, London SCJ Court File No. F1098/18, per Mitrow J. Although the health, safety and well-being of children remains the court’s foremost considerations during the COVID-19 pandemic, it is presumed that meaningful personal contact between a parent and a child is in the child’s best interests.
[6] Children need their parents more than ever during this time. They will benefit from being nurtured and comforted by both parents who have been part of their lives. Efforts should be made to maximize time with both parents while minimizing transfers between households. Vitally important family relationships cannot be placed on hold indefinitely without risking serious long-term harm: Chrisjohn.
[7] In the case before the court, the mother moved with Aria to Toronto after separation, without seeking prior approval of the court or consent of the father. Since then, she has unilaterally dictated the parenting schedule and the terms of the father’s parenting time with Aria. For the reasons set out below, I reject every one of the concerns that the mother has raised.
i. Mother’s Concerns Re: Father’s Parenting Abilities
[8] The mother states that the father should demonstrate that he is “mature” enough to look after Aria before there is overnight parenting time.
[9] There is no evidence to suggest that the father lacks the parenting ability to care for Aria. The affidavits of the father and his family members attest to the fact that he helped care for Aria prior to separation. He bathed, fed, and changed Aria. He rocked her to sleep, read her stories, cuddled and played with her. He has also attended parenting courses after the separation.
[10] Since separation, the father has had very little in-person time with Aria. During the past ten weeks, the father has had daily FaceTime visits with Aria for approximately 30-40 minutes each day. He has also had daytime in-person visits with Aria in Toronto on the following dates:
i. March 7, 2020 (6 hours); ii. May 9, 2020 (4 hours); iii. May 16, 2020 (4.5 hours); and iv. May 23, 2020 (5 hours).
[11] In his affidavit of May 29, 2020, the father stated that he also planned to see Aria on the weekend of May 30, 2020, if the mother allowed the visit.
[12] The father has made the most of his time with Aria. The consistency, frequency, and duration of the FaceTime visits is striking. Although he would like to have overnight parenting time in his home, he has complied with the mother’s wishes and visited with Aria in Toronto. The father’s description of the in-person visits demonstrate that he is a loving father who carefully plans meaningful and appropriate activities and snacks for his daughter. The evidence is that Aria has enjoyed these visits and reaches for him when he leaves. She clearly has a strong bond with the father even though he did not see Aria in person for an extended period of time.
[13] I have no concerns about the father’s parenting abilities.
ii. Mother’s Objections to Overnight Visits at the Father’s Home
[14] The mother has described the father’s family home as “toxic”. However, the issues that she describes arose out of her own poor relationship with the father’s family. There is no evidence of any conflict between the current members of the father’s household.
[15] The parties lived with the father’s family before Aria’s birth, and she spent the first seven months of her life in that home. The paternal grandparents financially supported the parties, played a supportive role in Aria’s life and provided a safe environment for their grandchild during this time. The father’s family helped to care for Aria and will continue to provide support to the father in caring for Aria during her time at the home.
[16] Aria has her own bedroom at the father’s house. There is a large outdoor space for her to play. The father has a stroller and other equipment to properly care for the child.
[17] The Jewish Family and Children’s Services have been involved because the mother was in the foster care system. A representative attended at the father’s home on March 11, 2020 and stated that the agency does not have any concerns with the father’s home.
[18] The mother states that the father should not have overnight time with Aria until he obtains his own residence. It is unrealistic for Aria to wait for meaningful time with her father until he is financially stable enough to get his own residence. In fact, the mother currently lives with her own family.
[19] It is also inappropriate for the mother to suggest that Aria should wait for meaningful time with the father until the mother gets her own place, so the parties can exercise a “nesting” arrangement. Having the parties in the same residence, even temporarily, would not be appropriate given the high level of conflict that existed in their relationship prior to separation.
[20] The mother has expressed concerns about the father’s siblings smoking marijuana in the house, and the father has also made allegations about the mother smoking marijuana. To address these concerns, the order shall contain a term that no one in the household consume marijuana when the child is present.
iii. The Mother’s Concerns Re Visits for the Father and Not His Family
[21] The mother raises concerns that the father’s extended family will care for Aria, and that it will not truly be time with the father. I reject this submission.
[22] The father works night shifts from 11:30pm to 9am, from Sunday evening to Thursday morning. He is currently working from home. When he is working, he sleeps from 9am to 12 noon and then from 8 to 11pm. I find that it is appropriate for the father to have weekend parenting time when the he is not working. In addition, I have no concerns about the father’s extended family.
iv. The Mother’s Health Concerns in Light of COVID-19
[23] In her affidavit sworn May 6, 2020, the mother stated that she has “a history of asthma and pneumothorax” and that she considers herself to be “a vulnerable person with an underlying condition” that would diminish her ability to effectively fight COVID-19 if she were to contract it. She also stated that the maternal grandmother has “a history of asthma”.
[24] Claiming to have a “history” of a medical condition does not establish that a person currently suffers from that condition. On May 21, 2020, the court directed the mother to file additional evidence regarding their current diagnoses, current treatment, and information regarding how their health condition(s) may impact their ability to manage COVID-19.
[25] The mother filed a new affidavit dated May 27, 2020 and attached medical records from July 2019. There is no doctor’s letter explaining the records. Contrary to the mother’s earlier affidavit, the records state that she was not suffering from pneumothorax. The medical notes from July 7, 2019, state a diagnosis of “pneumomediastinum and subcutaneous emphysema”, which conditions appear to have been resolved by the time of a follow-up examination on July 11, 2019.
[26] The mother has not provided a doctor’s note to explain the diagnosis from 11 months ago, nor to provide insight into whether the mother is currently suffering from these conditions or is at risk of reoccurrence in the future. The mother’s new affidavit does not provide any information regarding any current medications or treatment, either for the conditions diagnosed last July or for any asthma diagnosis.
[27] In addition, there is no affidavit from the maternal grandmother, nor any medical records to support a past diagnosis of asthma. In her affidavit of May 27, 2020, the mother also states (for the first time) that the maternal grandmother has a history of cancer, but provides no information regarding the type of cancer, the treatment that she received, and whether there are any ongoing health issues related to a cancer diagnosis. Stating that someone has a history of asthma or cancer does not provide sufficient information to assess the seriousness of the particular health issue and whether it currently causes the person to be more vulnerable if they contract COVID-19.
[28] The mother stated that she did not have an opportunity to obtain medical records for the maternal grandmother. At the very least, if there were any current medications that are relevant to the medical conditions, a list of prescriptions could have easily been obtained from the pharmacy. This evidence was not provided for either the mother or the grandmother.
[29] The mother has not established that she or the paternal grandmother is more vulnerable to COVID-19 than any other member of the general public. Of course, every member of the public is potentially vulnerable to the virus, and it is important that the father provide reassurances that he is following proper safety protocols.
v. Father’s Reassurances Re: COVID-19 Safety Measures
[30] The father has demonstrated that there has been and will continue to be fastidious compliance with COVID-19 protocols in his family household, as follows:
i. The father resides in a secluded home in the country with six members of his extended family. The father states that they have not left the house except to meet briefly with counsel, for curbside grocery pickup, and to have parenting time with Aria. ii. In addition, the paternal grandfather recently returned to work at Toyota. The father’s affidavit included numerous pages of strict protocols put in place at Toyota to prevent the spread of COVID-19. iii. The father works from home. iv. People from other households have not been allowed to visit the home. v. The father states that the family practices regular hand washing, use hand sanitizer and wear masks and gloves outside of the house. vi. The family members have been social distancing, using gloves and masks. vii. Groceries are delivered to the home or purchased with curbside pickup. They are wiped down with disinfectant wipes before items are put away.
[31] I am satisfied that the father’s family is following COVID-19 safety protocols to minimize the risk of contracting the virus. Although the father has been extremely careful in choosing the locations for visits in Toronto, I find that it would be safer for him to spend time with Aria at his family home in Breslau than in a public location.
Conclusions Re: Best Interests of the Child
[32] It is in the best interests of Aria that she spend quality time with both parents. In light of the travel time and cost that will be incurred for each exchange, the parenting plan must include extended overnight parenting time at the father’s home every weekend. Although Aria is comfortable with the father, the first two weeks will be a transitional period with shorter 24-hour visits from Saturday to Sunday. Once the transitional period is complete, the parenting schedule will include Aria spending 48 hours with the father every weekend, from Friday to Sunday.
B. Child Support
[33] The father will be solely responsible for the cost of driving back and forth to Toronto to exercise his parenting time with Aria. The mother does not have a means of transportation.
[34] The father asks that child support be reduced by $54 per month to account for the transportation costs to exercise parenting time. The round trip between Breslau and Toronto costs approximately $35 in gas, which the father is paying for. The order will include parenting time every weekend, for a cost of approximately $140 per month.
[35] The child’s residence was in the Waterloo Region for the first 13 months of her life. The mother moved with the child to Toronto without the father’s consent and without a court order. I am sympathetic to the father’s request to reduce child support because of the transportation cost for him to exercise parenting time. However, I am concerned about reducing the child support amount when it is only $254 because the mother will bear most of the child-related costs. I therefore decline to reduce the amount of support payable.
III. Costs
[36] The father has been entirely successful on this motion and is entitled to costs.
[37] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle. The father shall provide costs submissions by June 17, 2020; and the mother shall provide any response by June 30, 2020. The parties may mutually agree on an extension of the timelines and should advise the court if they do so.
[38] In the event that submissions are not received from either party by June 30, 2020 and there is no extension agreed to by the parties, costs shall be deemed settled. Costs submissions shall be filed by email to Kitchener.Superior.Court@ontario.ca, and marked for the attention of Justice Braid. Since the Superior Court is currently closed due to COVID-19, hard copies of costs submissions shall be filed within two weeks of the court office resuming operations to accept filing of court documents.
IV. Orders
[39] The court makes the following orders on an interim, without prejudice basis:
Commencing June 6, 2020 the Applicant father shall exercise parenting time every weekend with the child, Aria Bernie Emmersyn Deveaux, born November 30, 2018 (“the child”), at the father’s residence located in the Regional Municipality of Waterloo. At the assigned times noted below, he shall pick up and drop off the child at the Respondent mother’s residence: i. Saturday, June 6, 2020 at 12 noon (pickup) to Sunday June 7, 2020 at 12 noon (dropoff). ii. Saturday, June 13, 2020 at 12 noon (pickup) to Sunday June 14, 2020 at 12 noon (dropoff). iii. Friday, June 19, 2020 at 12:00 noon (pickup) to Sunday, June 21, 2020 at 12 noon (dropoff). This schedule shall continue every Friday to Sunday thereafter.
The father shall be responsible for transporting the child between the City of Toronto and the Regional Municipality of Waterloo to exercise parenting time.
On the 1st of each month commencing on May 1, 2020, and continuing on the 1st of every month thereafter for as long as the child is eligible to receive child support pursuant to the Family Law Act and the Child Support Guidelines, the father shall continue to pay child support to the Respondent, Evelyn Eliana Najnudel, for the benefit and support of the child, Aria Bernie Emmersyn Deveaux, born November 30, 2018, in the amount of $254.00 per month. The Child Support Guideline amount is payable based on a projected income in 2020 of $30,000.00 per annum.
The father shall FaceTime with the child every day that the child is not in his care for a minimum of 10 minutes. Commencing Saturday, June 20, 2020, the mother shall FaceTime with the child every Saturday that the child is not in her care for a minimum of 10 minutes. The parties shall make arrangements amongst themselves to determine the best time to arrange FaceTime.
Neither party shall consume alcohol or use marijuana while the child is in his or her care. The parties shall ensure that no other person smokes marijuana in the household when the child is present.
While the COVID-19 pandemic is in effect, the parties shall adhere to the following: a) Both parties shall ensure they adhere to all Public Health recommendations related to COVID-19 (so long as they remain in effect) including but not limited to wiping down surfaces and objects as required, only attending public places for essential services such as to purchase groceries, social distancing, etc. b) Practice physical/social distancing by maintaining a minimum distance of 2 metres away from other people when in public; c) They shall not have any physical contact with non-essential third parties. d) Ask that third parties who reside with them practice social distancing and inform one another if those third parties do not; e) Not bring the child to any outdoor public location unless consented to by the parties in advance and agreed upon for a minimal time; f) If the child is off the property of the parties’ residence, put gloves and a face mask on the child when reasonable (transporting the child from the home directly to the vehicle, for instance, may not require this precaution); g) Wear gloves and a face mask when he or she is off the property of his or her residence; h) Regularly handwash and use hand sanitizer and ensure the child does same; and i) Contact one another immediately if either of them, a family member residing with them, or the child, experiences any symptoms of COVID-19.
Braid J.
Date: June 3, 2020