COURT FILE NO.: 1678/19 DATE: 2020-06-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dustin Newsham, Applicant AND: Patti Francois, Respondent

BEFORE: The Honourable Madam Justice Deborah L. Chappel, via Zoom video conference

PARTICIPANTS: Mr. S. Garcea, counsel for the Applicant, who participated Ms. N. Matthews, counsel for the Respondent, who participated

HEARD: June 16, 2020, via Zoom video conference

Reasons for judgment

I. Introduction

[1] This was the hearing of a motion brought by the Respondent mother in this case, Patti Francois (“the Respondent”). The Respondent and the Applicant, Dustin Newsham (“the Applicant”) were in a common law relationship until approximately October 24, 2019, when they separated. There is one child of their relationship, namely Dustin Joseph Newsham, born February 24, 2018 (“D.J.”). In her motion, the Respondent seeks an order reinstating her time-sharing with D.J. as set out in the existing temporary order of Lafrenière J. dated February 6, 2020. The Applicant opposes the motion. Although he did not bring a cross motion, his position is that D.J. should remain completely quarantined solely in his home as a result of the COVID-19 health crisis and concerns regarding the potentially dire consequences for D.J. should be exposed to the virus. His position is that the Respondent’s contact with the child should be limited to telephone and video conference contact until the health crisis has resolved.

[2] This matter was heard by way of Zoom video conference and through electronic processes as a result of the COVID-19 pandemic, and further to:

a) The Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media from the Ontario Superior Court of Justice, issued May 13, 2020 and available at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/; and

b) The Central South Judicial Region Notice to the Profession dated May 12, 2020 as amended on May 26, 2020, available at https://www.hamiltonlaw.on.ca/home/2020/05/13/may-13-central-south-region-re.-expansion-of-criminal-civil-and-family-services-effective-may-19th-2020;

c) The Central South Judicial Region Protocol Regarding Family and Child Protection Matters dated April 7, 2020. available at https://www.hamiltonlaw.on.ca/for-the-public/covid-19-hla-response#Protocol; and

d) The Central South Judicial Region Amendment to May 12, 2020 Notice to the Profession, dated May 26, 2020, available at https://www.hamiltonlaw.on.ca/home/2020/05/26/may-26-amendment-to-central-south-region-notice-dated-may-12th-re.-criminal-family-civil-expansion

[3] As referenced in the above Notices, the regular operations of the Ontario Superior Court of Justice have been suspended since March 15, 2020 and remain suspended until further notice.

[4] All materials were filed electronically through the applicable court email address. Upon the resumption of court operations, all materials will be duly filed in the physical record at the Ontario Superior Court of Justice, Family Court Branch in Hamilton.

[5] I reviewed the following materials in support of the motion:

1. Notice of Motion dated June 10, 2020;
2. Affidavit of the Respondent sworn May 29, 2020;
3. Responding affidavit of the Applicant sworn June 9, 2020;
4. Reply affidavits of the Respondent sworn June 12, 2020 and June 14, 2020; and
5. Reply affidavit of Michael Alcott sworn June 14, 2020.

[6] The hearing was recorded and began at approximately 2:00 p.m.

[7] For the reasons that follow, I have determined that the Respondent’s access as set out in the February 6, 2020 order should be reinstated immediately.

II. Background

[8] As I have indicated, the parties were in a common law relationship until October 24, 2019. They have been separated since that date. D.J. is the only child of their relationship. There is no dispute that D.J. has numerous special needs. He was born with a rare genetic condition called Spondyloepiphyseal Dysplasia Congenita. The Applicant father, his mother and his two brothers all suffer from the same condition. This disease causes many secondary medical conditions. D.J. has also been diagnosed with Odontoid Hypoplasia, as a result of which he is missing a bone in his neck that holds two vertebrae together. The parties agree that this condition causes considerable neck instability. D.J. also suffers from delayed speech. Although he is two years of age, he can only speak approximately 15 words. Accordingly, it would be difficult for him to verbalize any discomfort that he may be feeling if he were to become ill. The parties both acknowledge that as a result of his serious medical conditions, D.J. would be at high risk of suffering severe complications if he were to contract the COVID-19 virus. In particular, it is clear that his medical issues place him at high risk for complications relating to respiratory infections and illnesses, since he has a short torso but average sized lungs and other organs. An email from D.J.’s current orthopedic specialist, Dr. Burrows, dated June 5, 2020 confirms that D.J. is at increased risk of what is felt to be possible complications of COVID-19.

[9] As noted above, the parties separated on October 24, 2019. On that date, the Applicant left the family home with D.J. The evidence indicates that there was an altercation between the parties on that date, resulting in police intervention. However, no charges were laid. D.J. remained in the Applicant’s primary care, but the Respondent made numerous requests to share time with him. The Children’s Aid Society of Hamilton (“the Society”) became involved due to the incident of domestic conflict, and the Society worker attempted to facilitate contact between the Respondent and the child. These efforts were unsuccessful, and the Respondent retained counsel in November 2019 in an attempt to resolve the Family Law issues between the parties. She advised the Applicant that he should expect to hear from her lawyer. The Applicant responded by starting this application in early December 2019. An urgent motion was brought to address custody and access issues, but the case was put over to a case conference before Lafrenière J. on February 6, 2020.

[10] By the time of the case conference on February 6, 2020, the Society had completed its investigation in this case. Correspondence from the Society dated January 13, 2020 confirms that the Society verified that both parties had placed D.J. at risk of harm due to partner violence. The Society noted that the child is particularly vulnerable and susceptible to injuries due to his special needs. The letter confirmed that the Society had not verified concerns that the Applicant had reported respecting the Respondent’s parenting, mental health issues and exposure to partner violence in relation to her new partner, Michael Alcott. The Society did not take a position respecting the custody and access issues from a child protection standpoint, and in fact stated that it did not support either parent withholding access between the child and the other party. The Society has remained involved with the family to provide ongoing support.

[11] The parties reached a temporary resolution respecting the time-sharing issues at the case conference on February 6, 2020, and Lafrenière J. made an order pursuant to temporary Minutes of Settlement which the parties executed on that date. The order provided that the Respondent would have time with D.J. on a frequent and gradually increasing basis commencing February 10, 2020. Commencing March 16, 2020, the child was to be in the care of both parties on an equal basis, with exchanges to occur every Monday, Wednesday and Friday at 6:00 p.m. The order also included terms addressing the following issues:

1. Each party was to pick the child up from the other party’s home at the commencement of their time-sharing.
2. The parties were to communicate with each other in a child-focussed and respectful manner, and were not to speak negatively of each other in the presence of the child;
3. The parties were to communicate with each other by email.
4. The parties were to maintain a communication book respecting the child, which was to travel with D.J. from each of their homes.
5. The Respondent was to schedule an appointment with the child’s medical doctor and physiotherapist to educate herself about any special care and nutrition needs of the child.
6. The Applicant was to immediately provide the Respondent with the names and contact information of all third party service providers and caregivers involved with the child.
7. The Respondent was to refrain from using marijuana at least six hours before and during her time with the child.
8. Neither party was to expose the child to any form of domestic violence.
9. Both parties were to attend the child’s medical appointments, and the Applicant was to notify the Respondent of the appointment times and locations;
10. The Applicant was to provide the Respondent with a letter setting out the household routine for D.J. and any special dietary or other requirements for him.
11. The Applicant was to immediately provide the Respondent with a medical binder in his possession setting out D.J.’s medical condition and any other information he felt would assist the Respondent in understanding the child’s conditions.
12. The parties were required to contact each other in the event of any emergency involving D.J.
13. The Respondent was not to leave the child with any other caregiver, unless this has been discussed and agreed upon with the Applicant.

[12] The parties generally complied with the time-sharing plan set out in the March 6, 2020 order until March 19, 2020, although the Respondent alleges that there were occasions when the Applicant insisted on staying during some of her time with the child and interfered with her interactions with D.J.

[13] On March 19, 2020, the Respondent emailed the Applicant and asked what his thoughts were about COVID-19 and any risk involved with D.J. going from home to home. It appears that one of the concerns was that the Applicant does not drive and was using public transit to pick D.J. up at the commencement of her time-sharing periods. The Applicant responded that his preference was for D.J. to remain in his care because of the risk of him contracting the virus. The Respondent agreed at that point that D.J. could stay with the Applicant, and indicated that she would connect with the Applicant over the weekend to see how D.J. was doing. However, on March 20, 2020, the Respondent indicated that she may have a driver to help her pick D.J. up for her time with him. The Applicant responded that he was not comfortable with this plan, since the driver could pose a risk to the child. The Respondent responded cooperatively, indicating that she would forego her next time-sharing period but would call over the weekend to check in on D.J. The evidence indicates that she did in fact do so.

[14] On March 23, 2020, the Respondent emailed the Applicant to confirm her time-sharing with D.J. that week. The Applicant responded by stating that he thought they had agreed that D.J. would not be going for further time-sharing periods with the Respondent due to the risks involved if he were to contract COVID-19. The Respondent immediately clarified that she felt she could take D.J. if she had a ride, and that she would ensure that the car that she used to transport him was properly sanitized. On March 24, 2020, the Respondent emailed the Applicant to confirm that she had arranged a ride to pick D.J. up, and that she would be coming to get him on Wednesday, March 25, 2020. The Applicant responded on March 25, 2020 by announcing that he did not agree with the Applicant having time with D.J. and that he had decided to keep him in isolation at his home. The Respondent replied in a calm and respectful manner on March 25, 2020 that she did not agree with the Applicant’s decision to suspend further time-sharing. She assured the Applicant that she appreciated the risks of COVID-19, that the proposed driver had been self-isolating except for essential outings, and that she could keep D.J. safe. The Applicant then suggested that the parties arrange for FaceTime and telephone contact between the Respondent and D.J. The Respondent indicated that the terms of the order only permitted them to communicate by email, and that she would need to discuss this issue with her counsel.

[15] Later on March 25, 2020, the Respondent advised the Applicant that her counsel had indicated that the parties could proceed with attempting FaceTime and telephone communication with D.J. Unfortunately, the Respondent’s phone broke and she was unable to proceed with FaceTime calls. She was unable to resolve the problems with her phone for several weeks because of the closure of repair shops due to the pandemic. However, the Respondent communicated with the Applicant on March 26, 28, 29 and 30, 2020 to check on how D.J. was doing.

[16] The Respondent communicated with the Applicant again on April 3, 2020 to check in on D.J., and to explain that she was still having major problems with her phone. On April 11, 2020, she emailed again and said she wanted to resume her time-sharing, and that she would be arranging a ride to come and get D.J. for Easter. The Applicant did not reply until April 16, 2020, at which point he stated that D.J. was still “in quarantine” and that he would not allow him to leave his home.

[17] On April 27, 2020, the Respondent advised the Applicant that she had finally been able to obtain a new phone. She asked that FaceTime calls with D.J. start the next day, but then suggested that they begin on April 29, 2020. The email exchanges between the parties reflect that they initially worked cooperatively and respectfully to set up the FaceTime calls. The Respondent was flexible based on the Applicant’s schedule and the child’s needs. Unfortunately, difficulties soon arise with respect to these communications. The Respondent alleges that she was only able to have approximately 5 video calls and 5 telephone calls, and that the Applicant often did not answer calls when she tried to connect with him to speak with D.J. By contrast, the Applicant claims that the Respondent was very inconsistent in connecting with him to set up telephone and video calls with D.J. As a result of the ongoing impasse respecting time-sharing, the parties arranged a settlement conference for May 19, 2020. They did not resolve the time-sharing issue, and this prompted the Respondent to bring this motion.

III. The Parties’ Positions

[18] The Respondent requests that the time-sharing arrangements as set out in the February 6, 2020 order resume immediately. She states that she, her partner and her son Christopher have been complying with all COVID-19 guidelines that have been issued by government and public health authorities, that she has arranged for a neighbour, Blair Clark, to transport her to the Applicant’s home to pick D.J. up for her time-sharing and that this neighbour has also been following government and public health directions. She states that she has no intention of exposing the child to any individuals during her time-sharing other than her partner, her son, and the driver, Blair Clark.

[19] The Applicant’s position is that D.J. should remain completely “quarantined” in his home until the COVID-19 pandemic is resolved or a vaccination is available. He has concerns about D.J. being outside of the home for any reason due to his vulnerability flowing from his medical conditions. His view is that reinstating time-sharing would place D.J. at risk of being exposed to the virus through the driver Blair Clark, the mother, the mother’s partner Mr. Alcott and her son Christopher. The Applicant alleges that the Respondent has not demonstrated a strong commitment to learning about the child’s conditions and attending his medical appointments, and that in his view, she minimizes the seriousness of his medical difficulties. He alleges that he has received calls from neighbours of the Respondent, who have allegedly reported that the Respondent has been having people in and out of her house and in her yard during the pandemic, that she and her acquaintances were drinking and getting high, and that Mr. Alcott has been visiting with a neighbour in his garage without wearing a mask. He referred to a historical allegation that the Respondent had exposed D.J. to an emotional altercation with a neighbour on September 13, 2019, and that she had been abusive towards D.J. in October, 2019. He also relayed concerns about the Respondent’s son, Christopher and her partner Mr. Alcott, who he alleges have histories of violence and threatening behaviour. In short, he simply does not trust the Respondent to keep D.J. safe from the COVID-19 virus or from other individuals in her life, or to properly address his special needs.

IV. Analysis

[20] The parties were never married, and therefore the starting point for the analysis of the issues in this case is the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended (the “CLRA”). Section 21 of the CLRA provides that a parent of a child or any other person, including a grandparent, may apply to the court for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child. Section 24 addresses the test for the determination of custody and time-sharing issues as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[21] Section 28(1) addresses the powers of the court in dealing with an application under section 21, as follows:

Powers of court

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. R.S.O. 1990, c. C.12, s. 28; 2009, c. 11, s. 12.

[22] Section 29 of the CLRA provides that the court cannot make an order varying an existing custody and access order unless it is satisfied that there has been a material change in circumstances since the existing order was made that affects or is likely to affect the child’s best interests:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[23] This section does not state that it is limited to variation of final orders, and I have previously held that it extends to motions to vary temporary custody and access orders (Kerr v. Pickering, 2013 ONSC 317 (S.C.J.)). This conclusion is consistent with the Ontario Court of Appeal’s comments in Serruys v. Serruys, 1982 CarswellOnt 305 (C.A.), at para. 12 that interim custody and access orders should not be changed unless there is a “manifest change in circumstances or any important new evidence to justify a change in the status quo.” The court emphasized in that case the importance of minimizing interlocutory proceedings in custody and access matters, stating that any decision can generally be only “guess based” without the benefit of a full hearing with viva voce evidence and cross examination. The Ontario Court of Appeal also emphasized in Lipson v. Lipson, [1972] 3 O.R. 403 (C.A.) the importance of encouraging Family Law litigants to advance their cases to trial as quickly as possible, rather than making interlocutory proceedings the focus of their litigation. Accordingly, before varying a temporary order, there should be sound reasons that militate in favour of taking immediate action with respect to the parenting arrangements rather than waiting for a final hearing on the issues.

[24] The Supreme Court of Canada addressed the test that applies in a custody and access variation proceeding in Gordon v Goertz, [1996] 2 S.C.R. 27 (S.C.C.). Although that case was decided under the Divorce Act, R.S.C. 1985, c. 3 (2nd. Supp.) as amended, the general principles which the court articulated apply equally to custody variation proceedings under the CLRA and other provincial legislation (Brown v. Lloyd, 2015 ONCA 46 (CA); W.(A.C.) v. P. (T.M.), 2014 ONSC 6275 (Div. Ct.); Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.); leave to appeal to S.C.C. dismissed, 2003 CarswellOnt 1387 (S.C.C.); Burgoyne v. Kenny, 2009 NSCA 34 (C.A.)). Drawing from these authorities, in order to satisfy the threshold test for variation under section 29 of the CLRA, the moving party must establish the following:

1. That there has been a change in the condition, means, needs or other circumstances of the child and/or the ability of the parties to meet those needs;
2. That the change materially affects the child; and
3. That the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

(see also Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.), at para. 4).

[25] If the moving party fails to satisfy the court that there has been a material change in circumstances within the meaning of section 29, the inquiry is at an end (Persaud, at para. 3). However, if the threshold criterion has been met, the court must determine the parenting terms that are in the child’s best interests, having regard for the considerations set out in section 24 of the CLRA. Both parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing custody and access arrangements (Bubis v. Jones, 2000 CarswellOnt 1243 (S.C.J.), at para. 20; Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); Deslauriers v. Russell, 2016 ONSC 5285 (S.C.J.)). The focus of the court’s inquiry is the child’s best interests having regard for the change in circumstances. The court must assume that the existing order was correct, and the moving party is not entitled to re-argue all of the issues that led to the making of the original temporary order, unless they are somehow relevant to events that have occurred since the existing order was made (Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Blank v. Micallef, 2009 CarswellOnt 5753 at para. 33; Kerr, at para. 11).

[26] The case-law that has evolved since the development of the COVID-19 pandemic is clear that general fears or anxiety on the part of one party that a child may be exposed to the virus by continuing existing parenting arrangements will not, standing alone, satisfy the test for a variation of those arrangements or justify suspending in-person parental time-sharing. Rather, there must be clear evidence before the court to establish that there has been a material change in circumstances since the existing order was made that is relevant to the child’s best interests, and that the existing parenting arrangements are no longer in the child’s interests. The facts of each case must be carefully considered to determine whether the overall circumstances of the child, the parties and members of their households, or the conduct of the parties and those who they have contact with, are such that a variation of the existing order is required in the child’s best interests. As Pazaratz J. emphasized in Ribeiro v. Wright, 2020 ONSC 1829 (S.C.J.), the COVID-19 pandemic cannot be used as justification by parents to engage in self-help measures and implement a blanket approach of isolating a child in one household. The court held in that case that such a blanket policy is inconsistent with a comprehensive analysis of the bests interests of the child. It stressed that in most situations, it will be appropriate for existing parenting arrangements and schedules to continue, subject to whatever modifications may be necessary to ensure that the risk of the child being exposed to COVID-19 are minimized and that all applicable government and public health guidelines relating to the virus are complied with. The fact that a child suffers from medical difficulties which render them particularly vulnerable to the effects of COVID-19 is a relevant factor in determining whether a variation of the existing parenting arrangements is in the child’s best interests, but again, will not be determinative. The analysis must consider the extent of each party’s appreciation of the risks to the child and their ability to ensure the child’s safety and well-being during their parenting time (Chrisjohn v. Hillier, 2020 ONSC 2240 (S.C.J.)).

[27] Applying these general principles to this case, I am not satisfied that there has been a material change in circumstances since February 6, 2020 that affects or is likely to affect D.J.’s best interests. The Applicant’s position appears to be based in part on the notion that the development of the COVID-19 pandemic and the risks to D.J if he were to be exposed to the virus are so dire that it is necessary for the child to be completely isolated in his home. However, there is no evidence to support this proposition. The only evidence before the court from D.J.’s health care team is that of his orthopedic specialist Dr. Burrows. In her email dated June 5, 2020, she agreed that D.J. is at increased risk of suffering possible complications from the disease, but she did not indicate that D.J. needed to be completely “quarantined” in one home to ensure his safety. Her suggestions respecting appropriate precautions were simply that D.J. wear a pediatric mask for any essential outings, and that his potential contacts be limited.

[28] The Applicant also submits that the Respondent cannot be trusted to properly manage the risk which exposure to COVID-19 poses for D.J., and that she and her immediate family members have engaged in conduct which supports this concern. I do not accept this argument. The Applicant’s views on this issue are based in part on his position that the Respondent has not demonstrated a commitment to fully apprising herself of D.J.’s medical issues or attending his appointments. The evidence before me does not support such a finding. While the Respondent may not have attended all of D.J.’s medical appointments in the past, it is clear that she has attended some of them. The evidence indicates that she has taken active steps to learn about D.J.’s conditions. For instance, she requested that the Applicant provide her with a binder in his possession that includes materials respecting D.J.’s health issues. In fact, as I have indicated, the February 6, 2020 order required the Applicant to immediately provide the Respondent with this medical binder and any other information that he felt would be helpful to the Respondent in understanding D.J.’s needs. The Applicant has failed to comply with this term to date. The Respondent is aware that D.J. has had a new family physician, Dr. Valintino, since May 15, 2020 and she spoke with Dr. Valintino on May 16, 2020 to obtain recommendations respecting D.J. and his protection in relation to COVID-19.

[29] The Applicant also submits that the Respondent is not able to appreciate the importance of limiting D.J.’s contacts with other individuals during this health crisis, and that she is unable to impose such limits. This is not borne out by the evidence. The Applicant has arranged for one person to assist her with transportation for the purposes of time-sharing exchanges, and she has assured herself that this person has been isolating as much as possible and complying with recommended COVID-19 guidelines. She states that she and her family members have been isolating to the best of their ability during the pandemic. She acknowledges that her partner, Mr. Alcott, has been working, but the evidence indicates that he does not have extensive contact with other individuals though his employment as a roofer and that he has been practicing appropriate social distancing measures and other safety protocols. The Applicant also indicated that her son Christopher, who lives with her, rarely leaves the home.

[30] As I have indicated, the Applicant alleges that the Respondent has been having numerous people in her home and backyard, and that Mr. Alcott has been in close proximity with a neighbour in their garage. The evidence does not support these claims. In support of these concerns, the Respondent relied in part on two photographs which he stated two un-identified neighbours took. I found one of the photographs to be inadmissible on the basis that it was completely blurry and unreliable. The second photograph purported to be a picture of Mr. Alcott speaking with a neighbour in their garage. I give no weight to this evidence, given that it was not dated and there was no evidence from the person who took the photograph clearly identifying the person in question as Mr. Alcott. There is no credible evidence before me to support the suggestion that the Respondent has allowed several individuals into her home or yard. The Applicant’s concerns respecting this issue are based primarily on alleged reports from some of the Respondent’s neighbours who he has not even identified. The Respondent and Mr. Alcott acknowledge that Mr. Alcott’s boss has come to their front porch to deliver his paycheques, but there is no indication that he entered the home. In any event, arrangements have now been made for Mr. Alcott’s boss to simply pull up outside of the home to deliver the paycheques rather than coming to the door.

[31] I am satisfied that both the Respondent and her partner are taking this pandemic seriously, that they fully appreciate the dire risks to D.J. if he were to contract the virus, that they have taken all appropriate safety precautions and that they are following all guidelines which government and public health authorities have issued. They are wearing masks as much as possible, regularly sanitizing their hands, their home, and any vehicles that they occupy, changing their clothing when then arrive home, limiting contacts with other individuals as much as possible, and exercising social distancing. Moreover, I find that the Respondent has been extremely responsible and cooperative with the Applicant in managing the risks that COVID-19 poses for D.J. and in all matters generally respecting D.J. She voluntarily stopped in-person contact at the outset of the pandemic because she was worried about transporting D.J. on public transport. When the Applicant continued to be resistant to in-person contact, she tried to work through the time-sharing difficulties in a calm and responsible manner. She agreed to video and telephone contact for a period of time at the height of the health crisis. The Respondent has attempted to portray the Respondent as a parent who has demonstrated minimal interest in and commitment to D.J. However, the materials before me establish quite the contrary. The Respondent presents as a mother who genuinely loves her son, is committed to him, and is willing and able to place his interests first. The Applicant relies in part on evidence that the Respondent did not contact him or D.J. for periods of time after he suspended her access. However, I find that this was in part due to the difficulties which she experienced with her telephone. In addition, from a practical standpoint, it is clear that video and telephone contact between the Respondent and D.J. has been exceedingly challenging due to D.J.’s young age, his limited attention span, his very limited speech, and the need for the Applicant to be involved in watching the child and managing his behaviour during the communications.

[32] In his materials, the Applicant discusses numerous events and concerns relating to the Respondent, her partner and her son Christopher which pre-dated the February 6, 2020 order. For instance, as I have already noted, he discusses an alleged incident in September 2019 involving the Respondent and a neighbour, another alleged incident in October 2019 when he states the Respondent was abusive towards D.J., and concerns that Christopher and Mr. Alcott have a history of violent behaviour. Significantly, the Society has fully investigated all of the protection concerns that have been raised in the past, and it only verified concern respecting both parents that D.J. was at risk of harm due to partner violence. Furthermore, the Applicant agreed to the time-sharing terms set out in the February 6, 2020 order despite having these alleged concerns.

[33] For all of these reasons, the Respondent has not established that there has been a material change in circumstances since February 6, 2020 that has affected or is likely to affect D.J.’s best interests. This ends the inquiry in this matter, although I note that in any event, I do not feel that there is a need for any additional terms in the existing order to ensure D.J.’s safety and well-being. The Respondent is a loving, capable and responsible parent who has demonstrated that she is complying with all COVID-19-related directions and appropriate safety measures. She has made reasonable and safe arrangements for the transportation of D.J. for time-sharing. I am satisfied that she will not use public transport for this purpose until it is safe to do so. In short, she can be trusted to take all necessary steps to ensure that D.J. is safe during her time with him. I am completely satisfied that the existing time-sharing arrangements as set out in the February 6, 2020 order continue to be in D.J.’s best interests.

[34] For the foregoing reasons, order to go as follows:

1. The temporary order dated February 6, 2020 remains in full force and effect. The time-sharing terms of that order shall be reinstated immediately, with the Respondent’s next time-sharing period to commence on Friday June 19, 2020 at 6:00 p.m.
2. The parties shall forthwith engage in reasonable discussions and negotiations respecting the issue of costs in connection with the motion. If they cannot resolve the issue of costs, any party seeking costs shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by no later than June 30, 2020. Any responding submissions shall be served and filed by no later than July 9, 2020. Reply submissions shall be served and filed by no later than July 14, 2020. There shall be no extensions to these deadlines unless otherwise ordered on notice to the other party prior to the expiry of the applicable deadline.
3. If no costs submissions are received within the specified deadline, the parties will be deemed to have settled costs and there shall be no order as to costs.

The Honourable Madam Justice Deborah L. Chappel Date: June 18, 2020