Court File and Parties
COURT FILE NO.: FC-17-357 DATE: 2020/09/02 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Patrick Rocheleau, Applicant AND Dominque Anne Lajoie, Respondent
BEFORE: Mackinnon J.
COUNSEL: Applicant, Self-Represented Frédéric Huard, for the Respondent
HEARD: August 31, 2020
Endorsement
[1]
Introduction and Background
The respondent brings this urgent motion to change the applicant’s parenting time pursuant to leave granted on August 14, 2020 by Master Fortier. On February 4, 2020 a Final Order was made on consent. It provided for shared decision making and residential parenting time for each parent with their son Olivier, now five years old. The Master permitted the motion to proceed in advance of the respondent bringing a Motion to Change the Final Order provided she delivers her Motion to Change by September 30, 2020.
2The Final Order provided for Olivier to be with the applicant on Tuesdays, overnight until Wednesday mornings, and alternate weekends from Friday until Sunday at 7:00 p.m. The primary relief sought by the respondent is to reduce that contact to supervised access at her residence on Tuesdays from 4:30 p.m. to 7:00 p.m. and on Sundays from 2:00 p.m. to 4:00 p.m. The applicant opposes any change to his parenting time.
3The respondent also seeks an order that the parties only communicate with respect to their son by Our Family Wizard, except in the case of an emergency. The applicant consents to this order.
[4]
Olivier's Health and COVID-19 Risk
The urgency request was granted because Olivier had been diagnosed with bicuspid aortic valve at age four months. This is a cardiac condition for which he is followed by a cardiologist. The respondent alleges that Olivier is at a higher risk from being exposed to COVID-19, that the applicant refuses to recognize this, and does not adhere to public health guidelines. Although she raises other issues, it is the allegations relating to COVID-19 that are at the heart of her request for limited supervised access.
5The respondent relies on a letter dated May 19, 2020 from Olivier’s family physician stating that he may be at higher risk of complications from COVID-19 and recommending that his care givers follow Ottawa Public Heath guidelines for physical distancing. She also submits the fact sheet from Public Health Ontario dated April 30, 2020. It says people of any age with a chronic medical condition including heart disease are at a higher risk for hospitalization or death should they acquire COVID-19. The fact sheet recommends those at increased risk for severe COVID-19 stay at home, limit physical contact to household members and essential caregivers, where this is not possible social distance or wear a mask, and stay away from anyone who is sick or may have been exposed to COVID-19.
6The applicant maintains that he, his family and his girlfriend all respect and follow the safety guidelines related to COVID-19. He has provided detailed affidavits from his mother, stepfather, girlfriend and others all attesting to the care and routines taken to adhere to the public health guidelines. I am satisfied that his family and girlfriend are doing their best to take proper care and to protect themselves and their households.
7The applicant disagrees that Olivier’s cardiac condition places him in a special category of risk. He presented a report from Olivier’s cardiologist summarizing her examination of him on August 11, 2020. The cardiologist states that Olivier has been well since last seen in May 2019 and is on no medications. She conducted a physical examination, and administered and reviewed a number of tests, including an echocardiogram. Her summary was that Olivier was a child “with a bicuspid valve which is well functioning but with mild ascending aortic and aortic root dilation which continues to bear watching as well as a tiny residual muscular VSD. At this time no intervention is required, and I would not anticipate any difficulties with this in the near future. … I would like to see him back in 1-2 years time, … At this time, he does not require SBE prophylaxis nor any activity restrictions from a cardiac standpoint.”
8Both parents were present for this examination. Neither asked the cardiologist nor did she provide any specific recommendations for Olivier related to COVID-19 arising from his cardiac condition.
9I find that although Olivier has bicuspid aortic valve it is well functioning at this time, and no medical interventions or activity restrictions are required now. It is telling that the cardiologist was not asked to advise whether Olivier was at greater risk in relation to COVID-19 when she saw him on August 11. I note that the family physician stated only that Olivier may be at higher risk of complications related to COVID-19, not that he is at a higher risk. I also prefer the report from the child’s own cardiologist, including what is and is not in it, over the general statement in the public health fact sheet. Based on these findings I conclude that the respondent has not established that Olivier is at higher risk of severe complications should he acquire COVID-19.
[10]
Compliance with Public Health Guidelines
That said, I find that the applicant has not followed all of the general public health recommendations that do apply to Olivier. I also find that he agreed to particular terms related to his week-long vacation with Olivier but did not comply with all of them.
11The applicant drove Olivier to North Bay for the long weekend in May to visit a cousin. Two friends came with them. At this time Ontario had not commenced Stage 1 re-opening. This non-essential travel including people outside Olivier’s household should not have occurred. I do not agree with the respondent that the lack of prior notice to her was a breach of the Final Order. But common courtesy between parents would have seen notice given. When Ontario moved into Stage 2 the applicant allowed close contact between his girlfriend and her two children with Olivier even though they were not part of an agreed upon ten person circle for Olivier. On June 21 the applicant also told Olivier he could hug an aunt who was present for a Father’s Day dinner. The aunt is outside Olivier’s household and circle; social distance ought to have been maintained.
12The parents agreed to a number of COVID-19 related terms to be adhered to by the applicant for his week long summer holiday with Olivier. The applicant did not comply with all of the agreed terms. He allowed two of his friends who were not on the approved list of people to spend an overnight with them. He took Olivier to a public water park although he had agreed not to enter any public establishments with Olivier. Although outdoors I find the water park is a public establishment and as was readily foreseeable Olivier needed to use the indoor facilities while he was there. The applicant’s submission that their attendance at the park and in its facilities followed the applicable provincial rules is beside the point. He made an agreement and he broke it. His explanation that he had agreed to the terms the respondent wanted because otherwise he would not have had the week long holiday time was not impressive.
13Other breaches of the agreement were alleged but were not established given the conflicting evidence presented by the parents.
[14]
Other Issues
There have been communication problems between the parents. Olivier has been exposed to adult conflict. The respondent is concerned to learn that the applicant’s new residence will be farther from where she and Olivier live than was his prior residence. These concerns would not warrant the reduction in contact and imposition of supervised access sought in this motion. They are better dealt with in the context of the Motion to Change. For these reasons I will not address them in this endorsement.
[15]
Disposition
Based on the findings made and reasons set out above I do not agree that the drastic changes to the applicant’s parenting time sought by the respondent are required. I do find that an order is required setting out the COVID-19 related terms the applicant must follow to maintain his current parenting time with Olivier. I order as follows:
- Prior to Olivier spending time in the applicant’s new household the applicant, his partner and her two children shall each take and provide to the respondent a current negative COVID-19 test result;
- Thereafter the applicant shall ensure that he and his household members adhere to all Ontario and Quebec public health guidelines for COVID-19 in force from time to time applicable to the Rockland and Buckingham areas and these shall include the ongoing showering and change of clothes on arriving home from work by his partner;
- Olivier’s circle shall include his mother, father, himself, his father’s partner and her two children and his paternal grandparents. The respondent may increase Olivier’s circle by two suitable people of her choice provided they agree to comply with the recommendations in place from time to time to be in a social circle with Olivier;
- Both parents shall insist on handwashing, social distancing and masks being worn where distancing is not possible, if and when Olivier is exposed to anyone who is not in his social circle. Olivier may not travel with anyone who is not part of his circle nor may anyone outside his circle reside in or spend overnight in the home while Olivier is present in it;
- Travel including an overnight by Olivier with a member of his social circle shall only occur with the written permission of both parents given in advance;
- Olivier shall not attend any indoor events, social, or recreational activities other than within the household of a parent or a named person who is in his circle without the prior written agreement of both of his parents. If Olivier is in the house of a named person in his social circle, handwashing, and physical distance or masking shall be maintained by any one present who is not in Olivier’s circle;
- Olivier may attend outdoor events, or outdoor social or recreational activities that comply with the applicable public health guidelines, provided he attends only with members of his social circle and the circle maintains its distance from all others present or everyone in the circle wears a mask. Handwashing immediately after the activity is mandatory. Notice of Olivier having attended any such event or activity shall be given forthwith to the other parent;
- A copy of the terms of this order shall be provided to every adult member of Olivier’s social circle. All adult members shall deliver their written undertaking to both parents signifying their agreement to adhering to the terms of the order failing which they shall not be part of Olivier’s social circle; and
- These terms may be changed by written consent of the parents or by order of the judge presiding the Motion to Change.
16I have the impression that these joint custodial parents have not yet agreed on Olivier’s form of schooling for the current semester. The issue was not before me and the terms I have imposed are not intended to apply to or to be indicative of a predisposition on that matter. If a subsequent judge makes an order with respect to Olivier’s schooling, he or she may change the terms I have imposed to facilitate the schooling order as may be appropriate.
[17]
Costs
In view of the outcome of the motion it may be that no order of costs ought to be made. However, if either party disagrees and wishes to make written submission for costs, they may do so on a timetable to be determined between them, but not later than 30 days hereafter.
J. Mackinnon J.
Date: September 2, 2020
COURT FILE NO.: FC-17-357 DATE: 2020/09/02
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Patrick Rocheleau, Applicant AND Dominque Anne Lajoie, Respondent
BEFORE: Mackinnon J.
COUNSEL: Applicant, Self-Represented Frédéric Huard, for the Respondent
ENDORSEMENT
Mackinnon J.
Released: September 2, 2020