Reasons for Judgment

Date: 2020-07-17 Superior Court of Justice - Ontario

Re: EDMUND WONG, Applicant And: AMY WING-HANN WONG, Respondent

Before: Sossin J.

Counsel: Diana Vasilescu, Counsel for the Applicant Pamila Bhardwaj, Counsel for the Respondent

Heard: July 9, 2020

Overview

[1] In this motion, the Applicant, Edmund Wong, seeks a temporary parenting order to provide greater access and parenting time with the parties’ three year old son, Rudi.

[2] The Respondent, Amy Wing-Hann Wong, has facilitated only limited and supervised access between the child and his father since March 10, 2020, out of concern regarding COVID-19, and the risk to her parents, with whom she and Rudi reside, who have vulnerabilities to infection.

[3] The parties were married on September 8, 2016 and separated on April 5, 2019.

[4] Rudi is their only son. Rudi is in the Respondent’s primary care.

[5] Initially after the separation, in May, 2019, the Applicant had unsupervised parenting time with Rudi two to three times per week for about four hours at a time. The dates and times were determined by the parties on an ongoing basis.

[6] Beginning in July, 2019, however, the Applicant acknowledged struggles with mental health and substance use and agreed to supervised access. From July, 2019 to March, 2020, the Applicant had about 35 access visits supervised either by a family member or the Side by Side supervision company.

[7] The Respondent resides with her sister and her parents, aged 65 and 70, who both have compromised immune systems and are vulnerable to infection.

[8] On March 13, 2020, the Respondent cancelled the Applicant’s scheduled visit with Rudi on as a precaution related to the COVID-19 emergency. On March 17, 2020, Ontario issued an order declaring an emergency relating to COVID-19 under s. 7.0.1(1) of the Emergency Management and Civil Protection Act.

[9] The Applicant has not had physical access to Rudi since that date. Instead, the Respondent has facilitated physically distanced porch visits with Rudi and FaceTime visits through an iPad or iPhone.

[10] At a case conference held December 30, 2019, Boucher, J., made an Order appointing the Office of the Children’s Lawyer (the “OCL”) to investigate and made recommendations to the parties. The final version of the Report is dated April 15, 2020 (the “OCL Report”).

[11] The OCL Report confirms that each parent is implementing safeguards and following strict social distancing in their respective household.

[12] The parties appeared on a motion before Justice Nakonechny on May 7, 2020, in which the Applicant sought to have a gradual increase in unsupervised access and parenting time with Rudi.

[13] Nakonechny J. made the following comments in relation to the requested parenting time relief (at paras. 42-43, 46):

[42] I am very concerned that the Applicant has not had meaningful, in person parenting time with Rudi for two months. This lack of parenting contact is damaging to Rudi’s relationship with his father. In my view, if we were not in the midst of the COVID-19 pandemic, it would be in Rudi’s best interest to order that the Applicant have parenting time with Rudi similar to the gradually expanded schedule of unsupervised access recommended by the OCL.

[43] Even in the pandemic, if the Respondent lived on her own with Rudi, I would have ordered unsupervised expanding parenting time. The parties would facilitate the in person parenting time and exchanges in accordance with recommended public health precautions to prevent the transmission of infection.

[46] The Applicant should have daily parenting time with Rudi. In the short term, it must take place at a distance. But these severe restrictions cannot go on for a prolonged or indefinite period of time. The detriment to Rudi of having limited contact with his father is too great. The situation must be monitored and reviewed regularly so that the move to normalized unsupervised regular access between Rudi and his father can be put in place as soon as possible.

[14] Nakonechny J. also found that future parenting visits between the Applicant and Rudi, once ordered, would no longer need to be supervised (at para. 40).

[15] Since Justice Nakonechny’s decision released on May 11, 2020, there have been a number of developments.

[16] Between May 11, 2020 and June 5, 2020, the Applicant had 18 physically distanced, porch visits at the Respondent’s residence.

[17] The Applicant’s visits with Rudi have proven stressful for all involved.

[18] Rudi has at times resisted participating in the visits, and reacted with temper tantrums. It also now appears that Rudi is experiencing mental health challenges, including nightmares.

[19] In light of this concerning situation, the parties have agreed to have an assessment of Rudi by a child psychologist as soon as this can be arranged.

[20] In his affidavit, the Applicant describes his frustrations with the visits with Rudi and the toll these visits are taking:

I have not been able to hold or hug our son since March 10, 2020. Since May 12, 2020, I have been attending at the Respondents' parents' home, where Rudi and I spend one to two hours 2 metres apart, almost daily. This arrangement has been emotionally, mentally and physically draining for Rudi who is now showing behavioural issues which he did not use to have. Rudi has not left his grandparents' home in 4 months. He is told he cannot hug his father and he is exposed to the conflict between the Respondent and I, who now have to interact daily for extended periods of time.

[21] The public health context also has changed from the time of Justice Nakonechny’s endorsement on May 11, 2020. The Toronto region has moved to “Phase 2” of its reopening within the context of Ontario’s Covid-19 framework, which allows social “circles” of up to 10 people to be formed. The Ontario framework states that,

People in the same social circle:

• do not have to physically distance
• can hug and touch each other
• should continue to follow public health advice, including frequently washing their hands and taking everyday actions to help stop the spread of COVID-19[^1]

[22] Notwithstanding these changes, the Respondent’s evidence is that her parents will not permit the Applicant to be within their “circle.” The Respondent’s parents maintain this position notwithstanding the Applicant’s uncontroverted evidence that the Applicant has taken significant steps to remain isolated from contact with others, and that he has tested negative twice for COVID-19.

[23] According to the Respondent, the consequence of this position is that if the Applicant is permitted unsupervised parenting time with Rudi, the Respondent will be forced to leave her parent’s home and find new accommodations.

[24] The Respondent has stated she is prepared to find new accommodations to enable the Applicant to have parenting time with Rudi, but can only contribute a limited amount to rent, and worries about whether she will find appropriate accommodations. The Respondent also argues that the Applicant should help defray the costs of the establishing a new family home.

[25] The Applicant lives in the condominium that is the matrimonial home. The Respondent also has proposed that she and Rudi move there, while the Applicant finds new accommodations.

[26] Both the Applicant and the Respondent are not employed at the moment due to the consequences of the pandemic, and each relies on the Canada Emergency Response Benefit (CERB) as their income.

[27] The Applicant claims that the Respondent has savings from which she could draw to fund a new rental accommodation, while the Respondent states that her savings have been depleted to meet her expenses.

[28] It is not possible to sort out these various financial and housing options within the context of this motion.

[29] The principle that the Applicant and Respondent share in the housing costs to provide a sustainable home setting for Rudi is reasonable, in the event that the Applicant is indeed forced to leave her parent’s home. Any sharing of these costs can be part of the eventual calculation of the support and financial aspects of the application.

[30] It is apparent that since Justice Nakonechny’s endorsement, relations between the parties have deteriorated.

[31] The Applicant has accused the Respondent and her family of exacerbating Rudi’s resistance to the visits and FaceTime calls, while the Respondent has accused the Applicant of hostility towards her and her family and, on one occasion, of spitting on a railing as he left their residence. Each party denies the allegations against them.

[32] The purpose of this motion is not to delve into these allegations in detail; rather, they reflect the unsustainable nature of the situation that now exists, and the worsening atmosphere for Rudi.

Analysis

[33] The focus of this motion is what parenting and access arrangements are best for Rudi.

[34] I am satisfied based on the record before me that both parties are deeply committed to Rudi’s well-being and happiness.

[35] The point of departure for a motion to vary or restore access under s.16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, is the best interests of the child “as determined by reference to the condition, means, needs and other circumstances of the child.”

[36] The factors that the court should consider in carrying out the best interests assessment will vary depending on the unique features of every child and case.

[37] Important factors to consider in this analysis are set out in section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, 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).

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.

[38] It is clear that the status-quo which denies parenting time for the Applicant beyond physically distanced porch visits and FaceTime calls is inconsistent with the OCL Report, and is inconsistent with Rudi’s best interests.

[39] Additionally, however, the best of interests of Rudi in maintaining a stable housing situation and the support of his maternal grandparents also must be considered in this analysis.

[40] There is limited case law addressing the best interests of the child assessment in the context of the gradual easing of COVID-19 restrictions and evolving public health situation, but the parties referred to several decisions which provide useful guidance as to the principles which should guide such assessments.

[41] The Applicant relies on Skinner v. Skinner, 2020 ONSC 3226, where Charney J. considered a situation where a mother had denied ongoing access to the father due to risk over COVID-19 infection, as the mother lived with her mother who had lung cancer and was undergoing chemotherapy. Charney J. emphasized that these health risks, while justifying vigilant adherence to public health directives, did not justify conditions beyond those required by public health officials, stating (at paras. 34-35):

[34] Given the applicant’s mother’s vulnerable medical condition, the applicant will have to maintain extra vigilance to ensure that her mother is not exposed to COVID-19. The applicant cannot, however, isolate her daughter at home until a cure or vaccine has been discovered. Provided the respondent complies with all government protocols, directives and recommendations relating to physical distancing and other precautionary measures to avoid exposure to COVID-19, the parenting schedule established by the January 15, 2016 Order must be maintained.

[35] The applicant may not unilaterally impose on the respondent conditions in addition to the safety precautions required by government and public health officials. If, given the applicant’s mother’s medical condition, the applicant is of the view that additional precautions are required, and the respondent does not agree to follow them, the applicant is granted leave to bring an urgent motion to request the court to add such conditions to the parenting schedule. Any such motion must be accompanied by medical evidence to support the request. (Emphasis added.)

[42] The Applicant also referred to E.“M” B. v. M.F.B., 2020 ONSC 3200, where Fowler Byrne J. addressed a similar situation. In that case, a mother had curtailed access rights to the father as the mother and children lived with her parents, who had significant health issues. Fowler Byrne J. found that the evolving nature of the COVID-19 context must be one consideration in determining appropriate access arrangements while at the same time reducing health risks (at para. 35):

[35] Every situation is unique. Every family is unique. Some concerning behaviour has been highlighted that should be addressed. However, that does not mean that access should be suspended altogether; it means that risk should be reduced. The first appropriate step to take is to eliminate the Father’s aunt as the facilitator of exchanges. This will reduce unnecessary interaction. A second step is to strictly enforce the safety protocols in place to minimize the transmission of COVID-19. Another step is to shorten the time for access, as there are fewer things for the Father and child to do while in Brampton at this time. This order shortening the Father’s time is not made with the intention of limiting the Father’s time with the child but only to recognize that the activities they can safety participate in at this time are limited. Hopefully, with the weather improving and some restrictions on gatherings being relaxed, there will be more that the Father and child can do outdoors or at his aunt’s residence. The Mother will be expected to cooperate in extending the access time back to the usual six hours when restrictions are lightened.

[43] The Respondent relies on Blythe v. Blythe, 2020 ONSC 2871 (“Blythe”). In that case, Chappel J. was confronted with a situation where the mother and children lived with the mother’s “medically fragile” parents, while the father, who was seeking greater access, worked as a full-time bus driver.

[44] In Blythe, Chappel J. found that while the father should receive access, he needed to comply with a number of conditions in order to minimize any risk of infection. In the course of her analysis, she emphasized that a best interests of the child analysis in the midst of the COVID-19 emergency requires the balancing of the benefits of greater access with the risks of transmission of COVID-19 as a result of more access:

[30] I have carefully considered the Respondent’s suggestion that the Applicant has regularly attempted to undermine his relationship with the children and has used COVID-19 as a means to continue on this course and gain an advantage in the custody and access case. I agree that there are concerns regarding the strength of the Applicant’s commitment to ensuring regular video contact between the Respondent and the children. She should have made many more efforts to facilitate this form of contact during the period when she withheld the children from the Respondent. I also have concerns that she did not devote more attention to formulating other solutions to the parenting dilemmas that led to these motions. I also reject her evidence that she believed that the Respondent had agreed to her decisions to withhold the children from him. I find that she was well aware of the Respondent’s strong objections, and that she inappropriately took matters into her own hands. She should have taken steps to address the issues with the court in the face of the father’s objections. Having said this, I am also mindful of the many challenges involved in initiating court proceedings during the COVID-19 crisis, and this is a mitigating factor in my assessment of her overall conduct. Notwithstanding these concerns, I am not satisfied that she has used the COVID-19 pandemic as a tool to gain a litigation advantage over the Respondent. I find that she is a loving mother to Abigail and Naomi, that she generally appreciates the importance of the children’s relationship with their father, and that she had sound reasons for taking the steps that she did. She found herself in an exceedingly challenging situation, during a period of heightened public panic when there were numerous directives from government and Public Health officials that were often challenging to keep up with.

[31] In reaching my decision in this matter, I have carefully considered the positive and meaningful relationship between the children and the Respondent and the maximum contact principle. Unfortunately, maximizing the Respondent’s contact with Abigail and Naomi is not consistent with the children’s best interests at this juncture. However, I have given considerable weight to the importance of ensuring as much contact with the Respondent as possible, taking into consideration the need to safeguard the well-being of the children, the Applicant and extended family members, as well as the need to protect the children’s primary placement with their mother and the stability of their home situation during these difficult times. (Emphasis added.)

[45] This case differs from Blythe in several respects. This decision was issued during the most restrictive period of COVID-19 measures, where there was significant community transmission of the virus, and significant uncertainty as to the risks for front-line workers such as bus drivers. However, the principle adopted in Blythe, as in the other cases cited, that parenting and access rights must be granted together with appropriate protective precautions, consistent with public health directives, is equally applicable in this case.

[46] I find that increasing the Applicant’s access and parenting time with Rudi can occur while at the same time reducing the health risk to the family, provided that public health directives are assiduously followed by both parties when with Rudi. These directives are particularly important where transportation is involved in the Applicant’s parenting time with Rudi, as the Applicant for the moment must rely on third parties to drive him to and from the Respondent and Rudi’s residence.

[47] Therefore, in light of Justice Nakonechny’s May 11, 2020 endorsement, the evolving public health context in the Toronto region, and the best interests of Rudi, I am satisfied that the Applicant’s motion should be granted.

[48] I recognize that this Order may put the Respondent in a very difficult situation, in light of her parent’s position with respect to the Applicant having unsupervised time with Rudi without physical distancing. Hopefully, the Respondent’s parents’ position will change as the public health context continues to evolve.

[49] However, if the Respondent’s position remains unchanged, Rudi’s best interests in having shared parenting time between the Respondent and Applicant must take precedence over the wishes of the Respondent’s parents, which the Respondent acknowledged may be rooted more in mistrust of the Applicant than in an evidence-based concern over the Respondent’s compliance with COVID-19 related precautions.

Conclusion

[50] For the reasons set out above, the Applicant’s motion for increased parenting time and unsupervised visits with Rudi is granted.

[51] Therefore, this Court Orders that:

1. The Applicant father shall have parenting time with the child, namely Rudi Sun-Yu Wong, born January 21, 2017 as follows: a) Commencing Wednesday, July 22, 2020, every Wednesday, from 11AM to 7PM for the following three (3) weeks, until Wednesday, August 6, 2020; c) Commencing Saturday, July 25, 2020, every Saturday from 11AM to 7PM for the following four (3) weeks, until Saturday, August 8, 2020; d) Commencing Saturday, August 15, 2020 from 1PM until the following Sunday at 6PM for the following four (4) weeks, until Sunday, September 5, 2020; e) Commencing Friday, September 11, 2020 at 5PM until the following Sunday at 6PM, such access to continue on an every other weekend basis until further agreement between the parties or order from the Court; f) Commencing Wednesday, September 16, 2020, every Wednesday from 3PM or when daycare/school ends until the following Thursday at 10AM or at daycare/school, such parenting time to continue until further agreement between the parties or order from the Court; and g) Any other additional parenting time as ordered by the Court or agreed upon between the parties.

2. During the COVID-19 pandemic, both parents shall ensure that the child is isolated and protected from any risk of infection with the COVID-19 virus. To achieve that goal: a) the child shall be transported between his parents’ homes using a car, face covering and gloves without any stops during transportation; and b) both parties shall ensure that enhanced hygiene measures are in place to protect the child during transportation between households and while in each parent’s care.

3. The Applicant will refrain from consuming any marijuana or alcohol 12 hours before his parenting time with the child and during his parenting time with the child.

4. The Applicant shall continue to have daily brief face time calls with the child when the child is not in his care. The Respondent shall facilitate such calls but shall not record them.

5. The Respondent shall provide the Applicant with a copy of the child’s health card and shall inform the Applicant as soon as the child needs any medical attention, including hospitalization or a doctor’s visit, or any changes in the child’s health.

6. The parties shall keep their communication in writing and at a minimum. Such communications shall be exclusively child focused.

[52] While the Applicant has been successful on this motion, the earlier endorsement by Justice Nakonechny adjourning the Applicant’s motion for gradually increasing unsupervised access, adopted significant aspects of the Respondent’s position. Justice Nakonechny reserved costs of that adjourned motion to be determined at the conclusion of this motion.

[53] In this context of these mixed results, I would make no order as to costs.

[54] This judgment and resulting order are effective from the date indicated below and are enforceable by law without any need for entry and filing. Either party may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.

Sossin J. Released: 2020-07-17

[^1]: Ontario, “Creating a Social Circle during COVID-19” at https://www.ontario.ca/page/create-social-circle-during-covid-19 (accessed July 16, 2020).