Court File and Parties
COURT FILE NO.: FS-17-89840 DATE: 2020 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maha Gerges, Applicant Deepa Tailor, for the Applicant
- and -
Ayman Ayad, Respondent David K Sherr for the Respondent
HEARD: June 4th and 9th, 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. Each party brought an urgent motion relating to access. Those motions were heard on May 27th, 2020. I dismissed the Applicant’s motion and granted the Respondent’s motion with written reasons to follow. Those reasons were released on June 1, 2020 (see 2020 ONSC 3375).
[2] Pursuant to my Orders, which were made effective immediately and in the presence of both the Applicant and her then counsel, the Respondent was to have access with the child of the marriage. That access was to take place on Saturday, May 30th, 2020. That access did not take place as planned. As a result, on Monday June 1st, 2020, the Respondent’s counsel wrote to my judicial assistant and asked for “directions for a motion for contempt of court, and orders to facilitate enforcement and deter future contempt.”
[3] I responded to that letter with an endorsement on June 2nd, 2020 that indicated that I was not yet prepared to consider a contempt hearing. However, I did indicate to the parties that it appeared to me that Rule 1(8) of the Family Law Rules may be applicable in the circumstances of this case. I directed the parties to file further materials and ordered a further teleconference to take place on June 4th, 2020.
[4] The Applicant retained new counsel in the intervening time. I received materials from both parties and convened a conference call on June 4th, 2020. During the course of the conference call, Applicant’s counsel argued that her client had not yet received signed Orders from the Court and therefore a remedy in the nature of a contempt remedy could not be made against the Applicant. I expressed some considerable concern with that position, and I will return to that issue in the body of my reasons. At the conclusion of that telephone call, I provided the parties with further orders. I also directed that the Orders from the May 27th, 2020 and June 4th, 2020 hearing were to be written up by the Respondent’s counsel and submitted to me for signature, and the approval of the Applicant with respect to form and content for those orders was dispensed with.
[5] One of the Orders I made was that access was to take place on Saturday, June 6th, 2020. I also ordered that there would be a further hearing on June 9th, 2020 to review matters.
[6] At the June 9th, 2020 hearing, I provided the parties with further directions, mostly on consent. Although Affidavits were filed for this hearing, there were no issues in dispute at the hearing as the access on June 6th, 2020 had taken place.
[7] This decision outlines the reasons for the orders that I made at the conclusion of the hearings on June 4th and 9th, 2020, and provides the parties with directions as to the next steps that are to be taken in this matter.
Background Facts
[8] The history relating to this case is set out in my decision of June 1st, 2020. For the purposes of these reasons, it is helpful to summarize a few key points from that decision, as follows:
a) The Applicant engaged in a self-help remedy, without justification, when she withheld access to John from the Respondent from the commencement of the lockdown in mid-March until my orders of May 27th, 2020. b) The Applicant provided versions of her conversations with the Respondent that were not accurate, and were offered in order to buttress her desire to preclude in-person access during the pandemic. c) The in-person access between John and the Respondent is important for both John and the Respondent, and I found that it is in John’s best interests that it continues to take place.
[9] As a result, I issued an order effective May 27th, 2020 at 3:00 p.m. that the access visits were to recommence with the next scheduled visit on May 30th, 2020. That visit did not take place. In the sections that follow, I will set out the events that took place as well as the relief sought by each party.
a) The Events Between May 27th, 2020 and June 4th, 2020
[10] Between my order on May 27th, 2020 and the scheduled access visit on May 30th, 2020, the Respondent wrote to the Applicant by e-mail and advised that he would be attending to pick John up on May 30th, 2020 at 11:00 am.
[11] On May 30th, 2020, the Respondent attended at the Applicant’s residence to pick John up. At this point the evidence of the Applicant and the Respondent differs. The Applicant states that it was John who did not want to go on the access visit that day. The Applicant states that she made her best efforts to have John attend at the access and, in spite of those best efforts, John would not attend. The Applicant states that she facilitated video access with John.
[12] The Respondent, on the other hand, states that he arrived at 11:00 and John was not outside. He knocked on the door, he called the Applicant and he texted her. No one answered the door. However, the second phone call was answered. At the start of that phone call, the Applicant advised the Respondent that John was in the washroom. The Respondent waited for John to come to the telephone. When John came to the telephone, the Respondent asked John if he was coming for access, and John replied that he was too scared and was not coming outside, even though the Respondent told John that he had brought personal protective equipment (“PPE”) for John.
[13] According to the Respondent, there was some back and forth between himself and John, but that John stated that he was not coming outside. The Respondent then spoke to the Applicant who stated, among other things, that she had made her position known in court and that John had made up his own mind about whether it was safe enough to go outside.
[14] Ultimately, after being on the telephone with John for some time, the Respondent left. The Respondent and John had a video conference call sometime later that day. I will return to my findings about the dispute between the parties in my analysis of the issues.
b) The Events Between June 4th, 2020 and June 9th, 2020
[15] Access successfully took place on June 6th, 2020. The parties provided me with Affidavit materials the following Monday in which they both confirmed that this access had taken place.
[16] There are some minor disputes between the parties about the facts relating to this access. Given the fact that the issues proceeded on consent, it is not necessary to resolve those disputes, except to note that counsel for the Respondent expressed concerns with paragraphs 9 and 10 of the Applicant’s June 8th, 2020 Affidavit. Those concerns are best left to another proceeding, if necessary.
c) The Relief Sought by Each Party
[17] After access was denied on May 30th, 2020, the Respondent sought (and was granted) leave to bring a further motion in order to enforce the Orders that I made on May 27th, 2020. The Respondent duly brought that motion, and sought relief requiring the Applicant to direct that John attend at access with the Respondent. The Respondent also sought the imposition of a fine on the Applicant. In the alternative, if the Applicant was not prepared to comply with my directions, the Respondent asked for an order directing that John temporarily reside with him.
[18] The Applicant sought a police enforcement mechanism with respect to the access visits. She also claimed that a fine was inappropriate at this stage because of the fact that she uses her income to care for John and her parents. The Applicant also requested that the Office of the Children’s Lawyer provide a virtual consultation with John. At the hearing of the motion, the Applicant’s new counsel argued that no access should take place until an independent third party had an opportunity to meet with John. Counsel further argued that the proper procedure for a contempt hearing had not been followed, and that the Orders had not been served on the Applicant.
[19] Counsel for the Applicant also sought an extension of the time limits to complete the costs submissions for the May 27th, 2020 hearing and relief relating to her retainer and the file held by the previous counsel.
[20] At the June 9th, 2020 hearing, the relief sought was all ultimately granted on consent, and my orders in that regard will be set out at the end of these reasons.
Disposition
[21] The first issue that should be addressed is the relief that the Applicant’s counsel sought with respect to the costs submissions and her retainer. There was no issue from the Applicant in respect of this relief. As a result, I granted an extension for the time to complete the Applicant’s costs submissions, and for everyone to complete their reply costs submissions. For reasons that are not necessary to explore in this decision, a further extension was granted. The procedural order from June 4th, 2020 has been modified appropriately and was previously sent to the parties.
[22] This brings me to the reasons for the relief I granted at the June 4th, 2020 hearing. I start with the argument that Applicant’s counsel made that a formal Order respecting the May 27th, 2020 hearing had not been served on the Applicant. I expressed considerable concern with this argument during the course of the conference call. My reasons for being concerned are as follows:
a) The Applicant was present on the May 27th, 2020 conference call, which was a Court hearing. b) At the conclusion of the Court hearing, I made specific orders, one of which was that access was to take place on May 30th, 2020. c) We are in the middle of a pandemic, and the Court office is not producing the paperwork that would normally have followed an appearance of this nature before me. There are significant difficulties in preparing and filing paperwork, and a party should not use those difficulties to evade their responsibilities under an order that they know has been made.
[23] As a result of the Applicant’s position, I directed that the Respondent’s counsel was to prepare and serve the Orders relating to the relief granted at the May 27th, 2020 and June 4th, 2020 hearings. I would then sign the Orders and my assistant would send the signed versions to counsel for the Applicant. Counsel was obliged to confirm receipt of the Orders by noon on June 5th, 2020, failing which I intended to have the local police service serve the orders directly on the Applicant. Counsel duly confirmed receipt of the orders.
[24] This brings me to the merits of the June 4th, 2020 hearing. Counsel for the Applicant argued that the OCL (or another third party organization) should conduct an independent assessment respecting John’s wishes before access visits resume. I rejected that argument for two reasons.
[25] First, at this point I am not persuaded that John’s views are actually his own. In this respect, I note two points. First, although the Applicant states, in general terms, that she has encouraged John to attend at access, she has not provided any details of those conversations other than the conversation with the doctor. In addition, I am troubled by the statement allegedly made by her (and set out at paragraph 13 of these reasons) that she had made her position known in Court and that John has now stated his position.
[26] In considering the Applicant’s statements, it is important to remember the context of this case. I have described that context already in my previous reasons. However, it is clear that the Applicant did not want John to have access with the Respondent during the pandemic. She set out a series of reasons why this access should not take place, and I rejected them all.
[27] It was only after the Applicant was unsuccessful at the first appearance that John’s unwillingness to attend at access became a focus of the Applicant’s position. On the evidence I have, it is difficult to separate the Applicant’s concerns from John’s alleged concerns. I am not persuaded that John has an independent desire not to see the Respondent in person during the regular access time as a result of the coronavirus.
[28] Second, even if John does have an independent desire not to see the Respondent during the regularly scheduled access times because of COVID-19, this is still not sufficient. I have made findings that the Respondent has taken enough social distancing steps to ensure that John is safe during access visits.
[29] Once those findings are made, the principles articulated by Mossip J. in [Reaves v. Reaves, [2001] O.J. No. 308 at para. 38] apply:
Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.
[30] The import of this passage is clear. Custodial parents are expected to ensure that children attend on access visits. Once I determined that the Respondent had taken sufficient social distancing steps, the Applicant had a positive obligation to ensure that John attended the access visit.
[31] Based on the Applicant’s June 3rd, 2020 Affidavit, I find that she did not comply with her obligations. There is nothing in that Affidavit that outlines what, specifically, the Applicant said to John to encourage him to attend access or what steps she took to ensure that he went on the access visit. In the absence of any concrete description of what precisely was said (other than facilitating a discussion with the family doctor), I am not persuaded that the Applicant took the necessary steps to have John attend the May 30th, 2020 access visit.
[32] This brings me to the family doctor’s note that was discussed in the Applicant’s Affidavit. I am not persuaded that this note supports the view that John should not have any in-person access with the Respondent. I reach that conclusion for two reasons. First, the timing of the note is of some concern to me. If Dr. Wahba had been medically concerned about John having access, there would have been a note from her in the original motion materials. Second, the note itself does not say that access is not medically appropriate. As a result, I am of the view that this note should not be given any weight.
[33] Based on all of the foregoing points, I issued the following orders at the conclusion of the hearing on June 4th, 2020:
a) A further follow-up call in this matter would take place on June 9th, 202 at 2:00 p.m. This call would proceed with or without counsel. b) Access will take place on Saturday, June 6th, 2020 from 11:00 a.m. to 5:00 p.m., and the Applicant was required to take all necessary steps to ensure that access does take place. c) If access on June 6th, 2020 did not take place then, on the following Saturday, access will take place and will be enforced by the local police. d) The Respondent’s counsel was to prepare the Orders from the May 27th and June 4th hearings and the Applicant’s approval as to the form and content of those orders was dispensed with. Those orders, and the reasons for them, are described at paragraphs 21 and 22. e) The other relief that is sought by the Respondent is adjourned to the hearing on June 9th, 2020, and each party was permitted to file an Affidavit to address the events between appearances. f) The costs of the June 4th, 2020 hearing are reserved. g) The Respondent was required to be clear about the steps he would take respecting PPE during the access visit.
[34] At the follow-up appearance on June 9th, 2020, we had a discussion about the issues that remain. Key among those issues was that counsel for both the Applicant and the Respondent advised me that they had spoken to counsel from the Office of the Children’s Lawyer, who had advised them that the OCL was not yet permitted to conduct in-person visits at people’s homes, and that the clinical assist who was working on the file wanted in-person visits. It was not clear to counsel from the OCL when these directives would change.
[35] As a result, the OCL was not likely to be ready to proceed to trial in November of 2020, as previously scheduled. Therefore, we discussed the possibility of there being either a case-management judge in this matter, or someone who could conduct a settlement conference for a longer period of time. I have undertaken to explore that issue with the Regional Senior Judge before our next appearance.
[36] Counsel for the Office of the Children’s Lawyer, Julia Haasz, was expected to be on the call but none of us could hear her and we did not realize that she was attending on the call. Ms. Haasz e-mailed my assistant promptly after the call had been completed to advise us that she had been on the call and could hear all of us, but could not be heard. Ms. Haasz advised that the reporting provided by counsel was accurate. I appreciate Ms. Haasz’s efforts to keep the Court up to date in this matter.
Next Steps and Costs
[37] I have already set out the orders that I issued on June 4th, 2020 at paragraph 33. At the conclusion of the hearing on June 9th, 2020, I made the following additional orders:
a) I remain seized to address any issues related to the implementation of my Orders regarding access during the pandemic. b) The parties are to discuss make-up access between them and are to endeavor to agree on it. If they are unable to agree by June 29th, 2020, they are to serve and file an Affidavit outlining their position and the reasons of that position. c) The Affidavits in paragraph (b) do not need to incorporate any other material that was included in the other Affidavits filed before me. However, any party wishing to refer to any other documents in the file (or any other orders) that have not been included must file that material as part of their Affidavits. d) A further conference call is to take place at 11:00 a.m. on July 2nd, 2020 for one hour. The OCL is invited to attend, and will be asked to update the Court as to trial readiness. e) At the next hearing, I will discuss with the parties the appointment of a case management judge to assist the parties with any matters that may arise between now and trial, and to conduct a settlement conference with the parties. f) The costs of the hearings on June 4th, 2020 and today may be dealt with by way of separate submissions. Each party may file submissions of no more than four (4) single-spaced pages exclusive of bills of costs and offers to settle by June 25th, 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. g) Parties may provide reply submissions by no later than July 2nd, 2020. 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 sub-paragraph. h) By filing their materials with the Court electronically, the parties undertake to file hard copies with the Court office when it is open for regular business again.
[38] Finally, as I have noted, I have retained jurisdiction to address any issue related to the implementation of my orders. As a result, if the parties have any concerns in that regard, they are free to e-mail my judicial assistant. A party wishing to raise an issue must provide a letter of no more than two (2) pages in length outlining the issue (or issues) that they wish to raise.
LEMAY J
Released: June 15, 2020