COURT FILE NO.: FS-14-14984
DATE: 20200618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K.A.B.
Applicant (Responding Party)
– and –
P.M.S.B.
Respondent (Moving Party)
Tamara Stomp, for the Applicant (Responding Party)
Jerrod Patterson, for the Respondent (Moving Party)
HEARD: April 24, 2020
REASONS ON MOTION
CAREY J.:
[1] This matter was before me on April 24, 2020, by way of an emergency teleconference motion ordered on April 5, 2020, by Hebner J., local triage justice pursuant to the COVID-19 pandemic court protocol. At that time, for brief oral reasons, I allowed the respondent’s motion and dismissed the cross-motion of the applicant mother. I ordered the immediate compliance with the custody and access orders presently in place with more fulsome written reasons to follow. These are those reasons.
[2] The parties share parenting of two children, T.X., almost 14, and G.E., nine and a half. In the intervening years, while there has been the use of Our Family Wizard (“OFW”) as a communication tool, the records show that the parents still require the regular assistance of the courts to resolve their parenting differences.
[3] This motion arose when the mother unilaterally began withholding in-person access to the children from the father, a nurse practitioner at the Windsor Regional Hospital Emergency Department (“WRH”). The father was in court in March for an order to get permission to take the children to Cuba for March Break. The mother says she was not withholding permission but was merely trying to negotiate a holiday schedule for future vacation periods. When the current COVID-19 pandemic cancelled the trip to Cuba, the father kept the children for that period and used some of the time to visit relatives, primarily the children’s grandparents. When the children were returned after this 13-day period, the mother wrote that she would be keeping the children for the equivalent period of time after which they would discuss future arrangements. At the end of 13 days, she wrote to the father stating that she would b withholding in-person access until the end of the COVID-19 pandemic. The father indicated that if she did not return to following the shared parenting order, he would seek court enforcement of the current order. When he brought this motion, the mother cross motioned. She did not seek a temporary suspension of the shared parenting order but rather suggested conditions to be imposed if the parenting order was enforced. She also disputed that her actions in unilaterally suspending the parenting order were such as to justify an emergency hearing.
Evidence
[4] The father’s affidavit material sets out in detail in para. 14(a) to (o) both the conditions under which he works and the steps he takes at work and when returning home to ensure safety from exposure to the COVID-19 virus. He explains that the emergency department at his hospital is a “cold zone” that is completely isolated from the “hot zone” of the hospital dealing with treatment of patients who have contracted the virus. His material extensively outlines the measures he takes at the end of every shift in relation to “doffing”, the hospital expression for the protocol required to change out of the personal protective equipment and clothes while at work back into his street clothes before exiting the hospital. He outlines, as well, that he works with 13 different health care professionals, including the emergency room Chief of Staff, doctors, nurses and nurse practitioners, all of whom he states return to their families at the end of the shift.
[5] He also described in detail a trip he took to the Sudbury area to see his parents and the care he took with his children and his extended family to avoid any contact that could potentially spread the virus. He states he loves his children, has missed them during the time that access has been withheld and finds Facetime quite unsatisfactory. He states he would do nothing that would endanger their or their mother’s safety during this period of isolation. He outlines his nursing experience, including that in the early days of his working life during the SARS epidemic.
[6] The mother’s material accuses the father of taking risks, exaggerating his qualifications and indicating that her experience as a dental hygienist during the SARS epidemic was more extensive than his. She says that she is essentially better qualified than the father, to comment on the appropriateness of him having contact in person with their children during COVID-19. Her material contains attachments, including news reports (much of which was from the U.S.), and government announcements. Her counsel relies on the recent decision of Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829, a triage endorsement of Justice Pazaratz. She particularly emphasizes para. 14 of that decision where it is stated, “[t]here will be zero tolerance for any parent who recklessly exposes a child (or members of the
child’s household) to any COVID-19 risk.” It is her position that the father cannot be trusted to follow the guidelines as he recklessly exposed his children and herself to the virus by his trip over March Break.
Analysis
[7] I agree with counsel that the decision in Ribeiro provides excellent guidance for the resolution of the issues in this case. It involved a mother who was concerned that the father would not maintain social distancing for the child during periods of access. I have also been assisted by other cases decided by my colleagues, both at the triage level and after hearing emergency motions: see Chrisjohn v. Hillier, 2020 ONSC 2240; Skuce v. Skuce, 2020 ONSC 1881; Zee v. Quon (27 March 2020), Toronto FS-16-412436.
[8] An important distinction between this case and Ribeiro is that in Ribeiro, the mother was seeking a change by the court in the access schedule due to the COVID-19 pandemic. The triage judge found, at para. 26, that the mother had not “established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.”
[9] Here, the mother arbitrarily suspended the parenting order after the father’s return of the children from the scheduled March Break time and has refused in-person access since then, without seeking court authorization. Moreover, there is no evidence of any deficiency in the steps that he takes at work to assure that he will not be spreading the virus. There is no admissible evidence to cause me to question the details of the steps and precautions he swore he took with the children while on his March Break trip with the children to see their grandparents.
[10] While her material ridicules the supposed experience of the father during SARS, and suggests her knowledge and experience gained as a dental hygienist over the same period of time is superior, she also speculates that if he really is as qualified as he says, then her concern would be that he will be transferred into an area of the hospital with higher exposure to the virus. There is no evidence that the hospital has not adequately addressed the risks in every aspect of their facility. To date, there is no evidence of COVID-19 spread in the WRH. The mother’s 55-paragraph affidavit relies on newspaper reports, uncredited hearsay and her own medical opinions to justify her arbitrary and unilateral disrespect of an existing court order.
[11] The mother’s argument here was focussed on part of the Ribeiro decision that speaks of zero tolerance for reckless exposure of a child to COVID-19 risk. In trying to portray the father as an appropriate target of this zero tolerance, the mother has, in my view, completely missed the overall message in Ribeiro.
[12] Paragraph 7 of Ribeiro states,“[t]here is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects
a determination that meaningful personal contact with both parents is in the best interests of the child.” Pazaratz J. continues at paras. 9 and 10:
We all have to work together to show flexibility, creativity and common sense – to promote both physical and emotional well-being of children.
A blanket policy that children should never leave their primary residence –even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
[13] Following a conclusion of the mother failing to establish a breach by the father of the COVID-19 protocols in the Ribeiro fact situation, Pazaratz J. returned to his plea for parental cooperation in the best interests of the children. He stated at para. 27:
In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.
Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.
Right now, families need more cooperation. And less litigation. [Emphasis is mine.]
[14] The decision concludes, at para. 30, with a sentiment that I can only echo. “None of us have experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”
[15] Here, I am satisfied that this was an appropriate case for an emergency motion. I am further satisfied on the father’s material that he is a responsible and knowledgeable medical professional who is rigorously adhering to the protocols established by the government, both at his employment in the hospital and in his interaction with his children and others. I find that the mother’s intractable position is not based on either fact or science. It is hard for me to conclude that her motivation for acting in defiance of the existing court order, was in the best interests of her children. As noted by counsel for the father, despite her express concern for the father’s actions during the March Break access, and her own described vulnerable health situation, she presented no evidence that she did anything other than suspend access. There was no evidence of isolation of the children or herself or attendance for medical advice or any attempt to change the existing order on her part.
[16] Regretfully, the material and the arguments in this case by the mother has led me to the conclusion that the message set out in Ribeiro needs clarification and expanded. There must also be zero tolerance for those who would use the COVID-19 and the role of essential health care professionals and other essential service providers recklessly, as a weapon, in order to advance their own position in ongoing parenting conflicts.
Thomas J. Carey
Justice
Released: June 18, 2020
COURT FILE NO.: FS-14-14984
DATE: 20200618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K. A. B.
Applicant
– and –
P.M.S.B.
Respondent
REASONS on motion
Carey J.
Released: June 18, 2020