COURT FILE NO.: FC-15-2519
DATE: 2020/06/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hilary Govan, Applicant
AND
Michael Dobson, Respondent
BEFORE: Mr. Justice Stanley J. Kershman
COUNSEL: Self-Represented, Applicant
Self-Represented, Respondent
HEARD: June 18, 2020 by Teleconference
ENDORSEMENT on motion for make up time
Introduction
[1] This motion was brought by Mr. Dobson on the issue of make up time because his parenting time was suspended by Ms. Govan as she was concerned that she had COVID-19.
[2] Ms. Govan took the COVID-19 test on April 30, 2020. Test results were not available until June 5, 2020 and were negative.
[3] Mr. Dobson who was having week on, week off parenting time with Hailey prior to the suspension of time by Ms. Govan, lost three weeks of parenting time because of her actions.
Mr. Dobson’s Position
[4] Mr. Dobson argues that Ms. Govan was not self isolating with the two children in the home when she claimed she was having symptoms of COVID-19. He cites two incidents to support this argument.
[5] In the first incident on May 23, 2020, the police conducted a wellness check at Ms. Govan's home and spoke with her husband, Tristan Valenti, a police officer in the State of Maine. According to Mr. Dobson, Mr. Valenti travels back and forth between Maine and Quebec for his work.
[6] Mr. Dobson alleges that Mr. Valenti was travelling from the United States to Canada and was isolating with Ms. Govan and the two children when he returned on about May 22, 2020.
[7] In the second incident, Mr. Dobson said that there was at least one other child in the Govan home, being Clara, a friend of Hailey’s.
[8] To support his position of this incident, Mr. Dobson provided a video recording which apparently shows Clara in Ms. Govan’s home at a time while she claimed to be self isolating. Mr. Dobson argues that if Ms. Govan was self isolating with the children, Clara should not have been there. The Court did not consider or view the video recording on the motion.
[9] Mr. Dobson proposes a two week on, one week off access regime whereby he has Hailey for two weeks and then Ms. Govan has her for one week over the course of three exchanges to make up for the three weeks of lost time with Hailey.
[10] Hailey’s birthday is on June 30, 2020. Mr. Dobson wants her to spend her birthday with him. On the current week on, week off exchange, according to Mr. Dobson, Hailey’s birthday falls within his access time. He proposes to begin the two weeks on, one week off arrangement after her birthday, specifically July 3, 2020.
Ms. Govan’s Position
[11] Ms. Govan argues that there should be no make up time for the three weeks missed by Mr. Dobson because after she became ill, she was tested for COVID-19, was prescribed medication and remained at home in isolation.
[12] She argues that since the test results were not received until June 5, 2020, that she was self isolating to protect herself and her family.
[13] Ms. Govan relies on the case of McKeogh v. McKeogh, 2020 ONSC 3184 in which the parents shared week on week off arrangements with their daughter. In that case, the mother, to protect her child from the pandemic, kept her daughter and the applicant father had no access to the daughter during this time. Paragraph 12 in that decision states the following: “While the Applicant seeks make-up time with Sophia, I order instead a return to the equal week-about schedule of parenting time… The best interests of Sophia, in my view, are more consistent with a return to the stability of the established schedule of parenting time.”
[14] Ms. Govan also relies on the case of Ribeiro v. Wright, 2020 ONSC 1829 in which Justice A. Pazaratz stated in paragraph 12 that: “In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness.”
[15] Ms. Govan argues that Hailey should not be penalized for Ms. Govan falling ill and following the provincial isolation guidelines. She submits that it would be in Hailey’s best interest to continue with the week on, week off schedule to avoid any confusion.
[16] Ms. Govan also argues that Hailey is suffering from and is being treated for certain health issues and is awaiting an appointment with an allergist. She has followed by her paediatrician monthly and will commence meetings with a social worker.
[17] Ms. Govan acknowledges, that due to COVID-19, no specific appointments have been set up for Hailey.
[18] Ms. Govan also argues that the make up time should not be granted because Mr. Dobson withheld parenting time previously.
[19] The Court has reviewed all of Ms. Govan’s materials with respect to the position of make up time, although not every argument has been set out in this decision.
[20] In an endorsement dated June 11, 2020, the Court requested information concerning Mr. Valenti, Ms. Govan’s husband.
[21] According to Ms. Govan, Mr. Valenti is a police officer with the Kittery Police Department in Maine in the United States and has been employed there for nine years.
[22] According to Ms. Govan, from March 15, 2020 to June 10, 2020, Mr. Valenti was home only once from May 22, 2020 to June 6, 2020, to see his son and step daughter and to help Ms. Govan while in isolation.
[23] Mr. Valenti then isolated for 14 days with Ms. Govan and the children and then returned to the United States.
Analysis
[24] The issue of make up time for Mr. Dobson is the basis of this motion. The weeks missed for make up time are the weeks of May 1, 2020, May 15, 2020 and May 29, 2020.
[25] The Court has considered the arguments of each party.
[26] The Court’s primary concern is the best interests of Hailey in accordance with section 24(2) of the Children’s Lawyer Reform Act, R.S.O. 1990, c. C. 12.
[27] While Ms. Govan argues that she was self isolating with the two children, the Court rejects that argument. Ms. Govan claims that she had symptoms of COVID-19 as of April 30, 2020. Then approximately 22 days later after being tested, she allowed her husband who had been in the United States since at least March 15, 2020 to isolate with her and the two children. At the same time, she would not allow Hailey to go to Mr. Dobson’s home for his parenting time.
[28] Why would Ms. Govan allow someone from the United States into her home during a Pandemic if she was concerned that she potentially had COVID-19, even if it was her husband?
[29] Mr. Valenti arrived in Gatineau in May 22, 2020. If Ms. Govan had concerns about her having COVID-19, she would not have allowed Mr. Valenti into her home and exposed him to her potential COVID-19 symptoms, unless she already knew that she did not have COVID-19. It certainly appears to the Court that by May 22, 2020, Ms. Govan had no concerns about having COVID-19. The Court makes a finding to this effect. The Court is aware that she did not have the test results by that date.
[30] At the same time, the Court is concerned with the actions of Ms. Govan, who placed herself and her children at risk because she exposed them to Mr. Valenti, who, while being her husband, had arrived on May 22, 2020 from the United States, having been there since March 15, 2020 to begin isolating with the children, who according to the evidence were symptom-free. The Court finds that Ms. Govan unnecessarily exposed the children, including Hailey, to Mr. Valenti thereby placing the children at risk for COVID-19.
[31] The Court finds that Ms. Govan made poor parenting decisions about isolating with her husband and placing her children, including Hailey, at risk.
[32] The Court has taken into account the two cases cited by Ms. Govan being the McKeogh case and the Ribeiro v. Wright case. The Court is fully aware of what the Court said in those decisions.
[33] Notwithstanding the findings in those decisions, the Court finds that based on the facts of this case, that make up time should be given to Mr. Dobson. At the same time, the Court finds that it is in Hailey’s best interest that only two weeks of make up time are granted.
[34] The schedule including the make up time will be as follows:
Date of Exchange
Child Goes To
June 12, 2020
Father
June 19, 2020
Mother
June 26, 2020
Father
July 3, 2020
Father – 1st make up week
July 10, 2020
Mother
July 17, 2020
Father
July 24, 2020
Mother
July 31, 2020
Father
August 7, 2020
Father – 2nd make up week
August 14, 2020
Mother
August 21, 2020
Father
August 28, 2020
Mother
[35] The week on, week off schedule will continue until Hailey is to be personally present in the classroom. At that time, the parenting time with Hailey shall revert to the regular schedule as set out in a Court Order of Kershman J. dated September 20, 2018 of 2-2-3 and partially amended as to pick up and drop off by the order of Engelking J., dated November 28, 2018.
[36] In the event that the school suspends in person attendance for Hailey once or more than once, the parenting time will revert to week on week off until she personally returns to school.
Other Matters
i. Skype Access
[37] There has been friction between the parties relating to the Skype access and in particular, in relating to the recording of Skype access.
[38] This Court orders that all future Skype or telephone access not be recorded in any manner whether video, audio or otherwise by anyone.
[39] The frequency of the Skype calls now changes from three times a week when Hailey was with Ms. Govan to once per week on Wednesday as set out in previous orders, save and except as set out in the next paragraph.
[40] For the weeks of July 3, 2020 and August 7, 2020 which are the two make up weeks, Ms. Govan shall have Skype calls three times per week, on Sunday, Tuesday and Thursday from 6 p.m. until 7 p.m.
[41] As stated in previous endorsements, the Skype calls are to be in a private room. Both parents will facilitate this communication and then the parent with whom Hailey is with, shall leave the room and not watch or listen in or in anyway record the visit so that Hailey and the person on Skype can have privacy.
[42] In any future Skype access, the party having a call with Hailey can have a maximum of three other people with them on the call.
ii. Costs Awarded on June 11, 2020
[43] This motion was related strictly to the make up of parenting time. Other issues were raised by Ms. Govan particularly related to costs awarded on an emergency motion held on June 11, 2020 when Ms. Govan was ordered to pay costs of $600.
[44] There has been no appeal of that decision. Accordingly, the issue of those costs will not be reviewed on this motion.
iii. High Conflict Case
[45] This file started in 2015. Hailey is approximately seven years of age. After reviewing this file, the Court notes that the Continuing Record is up to Volume 15. In addition, there have been at least 25 endorsements on this file.
[46] This level of litigation is totally unwarranted and unnecessary. It is a waste of the Court’s time and resources. The Court finds that this case is a high conflict case. The person who is hurting the most is Hailey. Unfortunately, the parties do not understand that Hailey is the one suffering from this protracted litigation.
[47] The Court cautions both parents to: 1) cooperate, and 2) communicate effectively with each other and abide by all existing Court orders.
[48] The Court orders that if there were any further breaches of the existing Court orders, the Court will consider heavily sanctioning the party or parties who have breached such orders.
[49] There will be no further motions without a case conference before Kershman J. The Court will decide whether any motion will be allowed to proceed. Frivolous motions will not be considered.
[50] This conflict must stop now.
Costs
[51] Cost awards are in the discretion of the Court. This Court orders that there be no costs of this motion payable by either party.
[52] This endorsement has the same effect as a formal order and is effective as of today.
[53] Order accordingly.
Mr. Justice Stanley J. Kershman
Date: June 22, 2020
COURT FILE NO.: FC-15-2519
DATE: 2020/06/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Hilary Govan, Applicant
AND
Michael Dobson, Respondent
BEFORE: Mr. Justice Stanley J. Kershman
COUNSEL: Self-Represented, Applicant
Self-Represented, Respondent
ENDORSEMENT on motion for make up time
Kershman J.
Released: June 22, 2020