Court File and Parties

COURT FILE NO.: FC-16-2045 DATE: 20/07/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAVID DANIEL MONCUR, Applicant AND STEPHANIE GINETTE PLANTE, Respondent

BEFORE: Justice D. Summers

COUNSEL: Mimi Marrello, Counsel for the Applicant The Respondent is self-represented

HEARD: July 9, 2020

Endorsement

[1] As a result of COVID-19, the Chief Justice of the Ontario Superior Court of Justice issued a Notice to Profession, the Public and Media Regarding Civil and Family Proceedings dated March 15, 2020, suspending regular operations. This notice and subsequent notices from the Office of the Chief Justice are available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam. In accordance with the March 15, 2020 notice, as amended April 2, 2020, this motion was heard by Zoom video-conference.

Overview

[2] This matter came before the court as an urgent motion by the mother, Ms. Plante. The issue was whether 9-year-old, Ian Richard Urs Plante-Moncur, could safely attend a rented cottage during the week of July 11 to 18, 2020 with his father, paternal grandparents, paternal aunt and cousin considering COVID-19 health risks. The cottage is located in the Kawartha Lakes region of Ontario. The grandparents were travelling from their home in Leamington, Ontario. The father’s sister and his niece were travelling from their home in Toronto. His brother-in-law was not attending this year.

[3] Ms. Plante’s Notice of Motion sought an order requiring the father to comply with COVID-19 health protocols in Ontario in order to take Ian on his planned vacation. Put another way, she did not want the child exposed to any non-compliant situation, even if that meant he was prohibited from taking summer vacation with his father.

[4] The father, Mr. Moncur, opposed the motion.

[5] On July 10, 2020, I released a brief endorsement allowing the mother’s motion prohibiting Mr. Moncur from taking Ian to the cottage, with reasons to follow. These are my reasons.

Background

[6] The parties married in 2007 and separated in 2015. Ian was born on September 28, 2010.

[7] Justice Kershman’s order dated November 20, 2018 governs parenting. The order is detailed and was made on consent in accordance with Minutes of Settlement. The parties share joint decision making and parenting time. Ian lives with each of them in alternate weeks.

[8] The conflict between the parties is high and longstanding.

[9] The relevant vacation provisions in Justice Kershman’s order can be summarized as follows. Each party has a summer vacation with Ian for a period up to 10 consecutive days until he reaches age 11 years. Then it increases to 14 days. Each party is to advise the other of their chosen weeks, no later than March 1st each year. Mr. Moncur has first choice in even-numbered years and Ms. Plante has first choice in odd-numbered years. The parties cannot object to the other parent’s reasonable plans with the child and the parties are to respect each other’s ability to care for the child appropriately. The travelling parent must ensure the safety and security of the child and not endanger his health.

[10] On June 30, 2020, Ms. Plante requested an urgent motion. When the matter came before me on July 7, 2020, it became apparent that Mr. Moncur had not received notice. At the court’s direction, Ms. Plante delivered her materials that day by email. She did not provide a satisfactory explanation for her failure to give notice.

[11] Given the limited time available before the cottage vacation was scheduled to begin, I determined the issue of urgency based on Ms. Plante’s materials only. I seized myself to hear the substantive motion on July 9, 2020 by Zoom video-conference. Mr. Moncur had only twenty-four hours to prepare his response.

The Mother’s Position

[12] Ms. Plante alleged that Mr. Moncur failed to properly consider the COVID-19 health risks of his summer holiday plan with Ian. She contends his determination to vacation with Ian at the cottage was selfish and unnecessarily risky. She argued four main points: first, that seven family members from three different parts of the province could not, in the circumstances of this case, constitute a social circle within the established provincial guidelines; second, that the recent COVID-19 outbreak in the Windsor-Essex region of Ontario added another layer of risk to the cottage plan; third, if the extended family group was not an allowable social circle, it would be nearly impossible for seven people to social distance in a cottage and keep surfaces properly disinfected; and, fourth, she expressed concern for her own health saying she has asthma and that places her in a high-risk category for COVID-19. Ms. Plante alleged that Mr. Moncur has always minimized her condition.

The Father’s Position

[13] Mr. Moncur submitted that Ms. Plante’s motion was nothing other than an attempt to interfere with his summer vacation plans for the third year in a row. He said Ian’s best interests are always first and foremost in his mind and he would never do anything to expose him to harm. Mr. Moncur said his girlfriend moved in with him when the emergency was declared and since then, the three of them had not socialized with anyone else. He said his plan to merge his social bubble with that of his parents and sister was consistent with provincial protocols and, therefore, the need to social distance or wear a mask at the cottage did not apply. He said that each family had their own bathroom, that he was well acquainted with recommended hygiene practices, and that he had no reason to leave the cottage once there. Finally, Mr. Moncur, admitted that Ms. Plante has asthma but said it was exercised induced asthma and suggested that it did not increase her COVID-19 risks.

Analysis

[14] The issue before the court was whether it was in Ian’s best interests to participate in the cottage week with his father and extended family in light of current provincial health and safety guidelines. I found that it was not in his best interest to attend. I will explain.

Creating a Social Circle

[15] The cottage vacation plan turned on merging three households to create one large social circle, commonly known as a “bubble” or “bubbling”. In addition to Mr. Moncur’s evidence about the social contacts in his household, the paternal grandfather provided evidence that his bubble consisted of only his wife, his daughter and granddaughter, all of whom would be at the cottage. With the maximum allowable bubble set at ten people, Mr. Moncur said their circle of seven fit within the provincial protocols.

[16] In late June 2020, Ms. Plante told Mr. Moncur that she did not share his views on the safety of his plan. Twice she asked him to reconsider and vacation with Ian at home. Mr. Moncur declined and reiterated that his plan was in keeping with provincial guidelines.

[17] I do not agree with Mr. Moncur.

[18] Both parties presented evidence of provincial safety recommendations taken from the government website. In addition, I find I can take judicial notice of other government information that is widely available in the public domain about COVID-19 social gatherings.

[19] Of concern for the court was the lack of information in relation to Mr. Moncur’s sister and niece and their social contacts. The court had no ability to assess the extent of that family’s social circle. According to the provincial guidelines, each person can only belong to one social circle. So, if a person is invited to join a social circle, their social contacts must also be considered.

[20] Moreover, it does not appear that consideration was given to the social circling directive from the province that separated spouses with children moving between their two homes must include each other in their respective household bubbles before expanding it. Here, this means that Ms. Plante is part of Mr. Moncur’s social circle and he is part of hers. Ms. Plante did not consent to be a part of the larger circle proposed by Mr. Moncur. I find nothing unreasonable about her decision to withhold agreement.

[21] Mr. Moncur’s evidence otherwise persuades me that he has been thoughtful and careful about health and safety measures. Both parties provided evidence about the day-to-day steps they each take to keep themselves and Ian safe while at home in Ottawa. Both work from home, social distance, practice good hand hygiene and are careful about grocery shopping, and other outings. I am satisfied that Mr. Moncur did not believe he was exposing Ian to any risk by pursuing the cottage vacation with his family. It has been said on many occasions that these are unprecedented and confusing times. What is allowed or not allowed is rapidly evolving. In pre-COVID times, the proposed family vacation would have been a fun, happy week for Ian. However, considering the current health threat and the evidence before me, I find the potential risk to Ian, and by extension to Ms. Plante, outweighs the benefits of one week at the cottage. Whether Ms. Plante’s asthma is exercise induced or not, it is asthma nonetheless and heightens the potential consequences to her should she contract COVID-19.

[22] Having decided the issue of Ian’s best interests in relation to the proposed vacation based on the shortcomings of Mr. Moncur’s plan to create a social circle, there is no need to address the remaining submissions.

[23] If the parties are unable to settle costs between them, Ms. Plante shall have until July 31, 2020 to deliver her costs submissions. Mr. Moncur shall then have until August 17, 2020 to respond. Submissions shall not exceed 2 pages, double spaced using 12-point font, exclusive of offers to settle and bills of costs.

Date: July 17, 2020 Justice D. Summers

COURT FILE NO.: FC-16-2045 DATE: 20/07/17 ONTARIO SUPERIOR COURT OF JUSTICE RE: DAVID DANIEL MONCUR, Applicant AND STEPHANIE GINETTE PLANTE, Respondent BEFORE: Justice D. Summers COUNSEL: Mimi Marrello, Counsel for the Applicant The Respondent is self-represented ENDORSEMENT Justice D. Summers

Released: July 17, 2020