COURT FILE NO.: FC-20-1151

DATE: 2020/09/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicole Yvonne Marie Davey, Applicant

AND

Devin Scott Davey, Respondent

BEFORE: Justice Engelking

COUNSEL: Ronan Blake, for the Applicant

J. Allison Campbell, for the Respondent

HEARD: September 16, 2020

ENDORSEMENT

1This is an urgent motion brought by the Applicant, Ms. Davey, under the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp.), requesting, inter alia, an order that the parties’ child, Cole, be returned to her primary care as per the parties’ separation agreement and for him to attend Henry Larsen Elementary School in-person.

2The Respondent, Mr. Davey has brought a cross-motion seeking an order, inter alia, an order that Cole’s primary residence be with him with specified parenting time with Ms. Davey, and that Cole attend York Public School virtually.

Background Facts

3The parties were married on July 21, 2005 and separated in or about June of 2015. One child was born of the marriage, Cole Davey, on July 7, 2009. Cole is now 11 years of age.

4On December 11, 2015, the parties entered into a Separation Agreement which provides for joint legal custody of Cole. His primary residence is to be with Ms. Davey. Mr. Davey is to have parenting time with Cole 30% of the time, while Ms. Davey is to have him 70% of the time. Mr. Davey’s time with Cole seemed to be structured around Ms. Davey’s work schedule at the time. Other provisions of the agreement include that before and after school care for Cole is to be provided “at the school for which he is enrolled in until such time both parent [sic] are in agreement that Cole is old enough to take public transit, walk, bike” and that “Text will be the main form of communication used by Devin. All important communications regarding Cole must also come in a digital form not limited too [sic] but 2 examples are email, text.”

5Ms. Davey’s evidence is that the exact nature of how the 70/30% split was scheduled changed over time, but that up until March of 2020, the status quo was that Cole lived primarily with her and would typically visit with Mr. Davey every second weekend. Ms. Davey asserts that she has been Cole’s primary caregiver throughout his life.

6Mr. Davey’s evidence with respect to parenting time was that the parties’ agreement was treated flexibly and there were periods of time where Cole was more regularly in his primary care, such as for about 18 months preceding the last couple of years. Ms. Davey adamantly disputes that assertion. Mr. Davey did confirm, however, that for the approximately last two years prior to March of 2020, he had been having Cole every second weekend.

7Ms. Davey works as a Registered Nurse and when COVID-19 began to cause shutdowns in Canada, she and Mr. Davey agreed that Cole would be in Mr. Davey’s primary care. According to her evidence, this was intended to be a temporary measure while they evaluated what the impacts of the Pandemic would be.

8Ms. Davey states that when she sought a return to the regular schedule in April of 2020, Mr. Davey simply refused. Attached as Exhibit “B” to her affidavit sworn on August 21, 2020 is an email from Mr. Davey to Ms. Davey which states:

Cole is calling

Pick up

Simply put he’s scared and does not want to go

He will be staying with me!

9This email appears to be part of a chain, the origins of which are not provided. Ms. Davey insists that she was requesting that Cole return to her primary care. Although he does not provide the beginning of the chain in his evidence, Mr. Davey states that the request was not related to resuming the regular schedule but was a request for a visit by Ms. Davey with Cole. Regardless of which is correct, Mr. Davey’s answer to the request is clear.

10Ms. Davey states that she continued to try and negotiate the return of Cole to her care. Mr. Davey disputes this, saying that Ms. Davey did not truly ask for Cole’s return to her care until July. In any event, sometime shortly after the above text message, Mr. Davey sent an email to Ms. Davey, on which he copied his own mother, Ms. Davey’s mother and Cole’s teacher. The email is undated but is attached as Exhibit “C” to the same affidavit of Ms. Davey. I reproduce it in its entirely below:

Nicole. Here is your response.

I have included your mother my mother and ray and colees teacher.

Cole has directly said he does not want to come over for the weekend because of health and safety concerns. It hurts that you want to go against what colee wants in such a direct and selfish move.

Colee will be available to chat with you when ever you have free time but he will not be going any where till after this pandemic. FULL STOP.

I am sorry you miss him but this is for your sons safety.

Listen close to the next paragraph. Colee was up till 1230 last night because he was soo distressed about this.

I needed to lie with him and rub his back til he was relaxed an calmed last night because this stress created and caused by your plan directly.

I can appreciate that you miss him but proper social distancing for our son till his health crisis is over is what has been going on and will continue. He Has not been out for much other than scooter rides with me since March. He doesn’t go shopping or into stores. Full stop.

He will not be going and visiting with you and your sister this weekend. Colee has free time Sunday if you would like to take him for a bike ride. He would really enjoy that.

Enjoy your day.

11On July 3, 2020, counsel Ms. Davey had then retained, Ms. Diana Carr wrote a letter to Mr. Davey requesting the return of Cole to Ms. Davey’s primary care as of August 3, 2020. Instructively, Ms. Carr’s letter states:

Over the past two months, Ms. Davey has consulted with me while she attempted, on my advice, to work out an arrangement with you. I understand that you have some concerns because she is a frontline worker. She informed me of the precautions she was taking to ensure the safety of Cole, ie. Showering, changing her clothes, wearing a mask and eye protection while working. She also considered leaving her employment in order to be able to work with Cole on his school work. Unfortunately, you have not been willing to come to an arrangement with her, and instead have withheld Cole at your discretion for the last three months, contrary to the terms of the order. When a parent wishes to change the terms of the order, he or she must go to court. You have not done so.

12While Mr. Davey asserts that the letter from Ms. Carr is the first notice he received of Ms. Davey wanting to resume primary care of Cole, the contents of Ms. Carr’s letter seem to bely a different story. Indeed, she indicates that Ms. Davey had been consulting with her for two months on her efforts to come to some understanding with Mr. Davey about having Cole return to her care. This is much more consistent with Ms. Davey’s evidence than it is with Mr. Davey’s. Regardless, and even though he was most certainly aware of Ms. Davey’s desire to resume primary care of Cole from at least the date of Ms. Carr’s letter, Mr. Davey has still not returned Cole to Ms. Davey’s care. Nor, as Ms. Carr pointed out, has he brought a Motion to Change the parenting terms of the parties’ Separation Agreement.

13Mr. Davey’s position is that he has not engaged in self-help, because the parties initially agreed for Cole to live primarily with him in March of 2020. He is of the view that, based on this agreement, a new status quo was created. I disagree. I accept Ms. Davey’s evidence, which Mr. Davey did not dispute, that both thought this would be a very short-term solution to the situation of the declaration of a Pandemic. From the time that Ms. Davey’s began requesting the return of Cole to her primary care, be that in April or in July, Mr. Davey has engaged in self-help. He, and he alone, has decided what is best for Cole. Full Stop.

14Mr. Davey’s position is that it is not in Cole’s best interests to return to the primary care of Ms. Davey. His position initially was centered around Ms. Davey’s potential exposure to COVID-19 through her frontline work. Ms. Davey has advised the court of all the precautionary steps she takes, as well as of all the protocols in place for her profession, and of the changes that have been implemented to her work schedule and routines to guard against exposure to COVID-19. Additionally, Mr. Davey has permitted some in-person access to Cole and proposes in his Notice of Cross-Motion that she have “reasonable and generous parenting time” which includes three weekends out of four as well as some mid-week time and virtual contact. His proposal is inconsistent with any concern about Ms. Davey’s potential exposure to COVID-19. I am satisfied this is not an issue such that Cole should be prevented from returning to Ms. Davey’s primary care.

15Mr. Davey also expressed some concern in his materials with respect to the state of Ms. Davey’s mental health. Notwithstanding his expressed concern, I was provided with no evidence which would support a finding that Ms. Davey’s mental health presents any issue in relation to parenting Cole.

16The remaining, and major, reason that Mr. Davey objects to Cole returning to the primary care of Ms. Davis is because she intends to have Cole attend school at Henry Larson Elementary School physically in-person. Cole will also attend some before and after school daycare if he is in Ms. Davey’s care due to her work schedule. Mr. Davey’s position is that the issue of Cole’s primary residence is inextricably linked to that of where and how he attends school.

17Mr. Davey objects to Cole attending school in-person for a number of reasons, the main one being that he and his new partner, Ray, are both diabetic, and, he avows, at high risk if exposed to COVID-19. Mr. Davey is, additionally, attending Algonquin College virtually in 2020/21 and will, therefore, be home each day where he can oversee Cole and guide him in his virtual school work. He believes that Cole can be successful in virtual schooling if he receives the proper support and has the proper tools. Indeed, without either consulting with or informing Ms. Davey, Mr. Davey unilaterally registered Cole at York Street Public School, which only came to Ms. Davey’s attention on August 19, 2020 as a result of her contacting the Ottawa Student Transportation Authority to arranging busing for Cole.

18Ms. Davey feels very strongly that it is in Cole’s best interests to attend school in-person. First, Cole was a student at Covent Glen Elementary School, which is a feeder school to Henry Larson. Ms. Davey has worked very hard with Cole’s educators. At the recommendation of Cole’s pediatrician, Dr. Kang, she obtained a PsychEd assessment for Cole (at her own expense with no contribution from Mr. Davey), which identified him as suffering from ADHD and dyslexia. An Individual Education Plan (“IEP”) was developed for Cole at Convent Glen which will follow him to Henry Larsen with a “handover report”, which will assure that Cole has appropriate accommodations at Henry Larsen. Ms. Davey fears there will be set-backs in Cole’s educational achievements to date if he does not attend school in-person and receive the assistance built in to his IEP.

19Ms. Davey also worked closely with Cross Roads Children’s Mental Health Centre to help improve Cole’s self-regulation abilities and manage his behaviours.

20Second, Ms. Davey states, and Mr. Davey concurs, that at his school before Convent Glen, Odyssey Elementary School, Cole was a subject of bullying due to his learning disabilities and consequential low self-esteem. After moving to Convent Glen School, Cole was able to make close friends for the first time. Ms. Davey asserts that Cole’s friends and classmates from Convent Glen will attend Henry Larsen, many of them in-person. She is of the view that losing his network of friends from Convent Glen/Henry Larsen would be devastating to Cole. Attending school in-person is, in her view, essential for Cole’s socialization needs and mental health.

21Third, although Mr. Davey asserts his belief that Cole will do well attending school virtually, and that he will be in position to support him, Ms. Davey notes that many of Cole’s virtual assignments were not completed when Cole was attending school virtually while in Mr. Davey’s fulltime care between March and June. Attached to her affidavit sworn on August 21, 2020 as Exhibit “F” are weekly summaries from Cole’s school from May 22, 2020 through to June 19, 2020 which demonstrate that Cole assignments for May 24 and 25 and June 5,7,8 (x2) and 15 were not completed by him. She is very concerned, again, that Cole will fall behind if the responsibility of having him attend school virtually is left to Mr. Davey. It is her contention that Cole spends an inordinate amount of time playing video games and/or watching TV while in Cole’s care, and that Mr. Davey spends an inordinate amount of time smoking marijuana.

22Mr. Davey does not dispute that Cole “played online quite a bit” while in his care but asserts that it was his way of keeping Cole connected to his peers. He also states that as part of promoting his interests and enhancing his education, Mr. Davey and Cole watch science and nature documentaries together. Mr. Davey asserts that he has enhanced Cole’s reading level significantly over the time Cole has been in his care.

23Nor in his affidavit does Mr. Davey dispute Ms. Davey’s evidence with respect to the frequency of his marijuana use, which she states is from first thing in the morning and then continuously throughout the day. Mr. Davey does dispute that he ever lost a job because of his use and that he smokes near Cole. He says he goes outside to smoke.

24With respect to the issue of Mr. Davey and his partner’s potential vulnerability in relation to COVID-19, Mr. Davey swore as follows at paragraphs 76 of his affidavit sworn on September 1, 2020:

76. I have noted previously that both my partner and I suffer from diabetes which makes both of us more susceptible to complications from the corona virus. As a result, we have been taking additional precautions. The applicant is aware of my medical condition and diagnoses, and my partner has submitted a doctor’s letter stating her health condition.

25Mr. Davey does not provide any further evidence to the court with respect to his own diagnosis or any risk exposure to COVID-19 may present to him. With respect to his partner, Ms. Eskritt, attached as Exhibit “A” to his affidavit is a letter dated August 26, 2020 from her physician, Dr. Kathleen Kinsner, whose address is in Winnipeg, Manitoba, which states as follows:

To Whom It May Concern:

This letter is to confirm that Rayanne Eskritt has diabetes mellitus type LL.

Sincerely,

Kathleen Kinsner, MD (Practicing as a Medical Corporation)

26Mr. Davey has attached as Exhibit “B” to his affidavit a statement or article from Diabetes Canada entitled “Relationship between Diabetes and Covid-19 July 2020”. The admissibility of the article is questionable, but even if I could take judicial notice of it, which Mr. Davey encourages, it does not assist me in determining the particular risk factors which may be present in relation to Mr. Davey or Ms. Eskritt. While the article indicates there are studies which suggest that people living with diabetes who contract COVID-19 are at higher risk of developing a number of conditions, I have been provided no information as to what type of diabetes Mr. Davey suffers from, nor any medical opinion from either his physician or from Dr. Kinsner as to what the specific risks may be for him or Ms. Eskritt.

Analysis

27Several cases have now dealt with the issue of in-person versus virtual attendance at school for children in Ontario. An oft-cited one is that of Justice Himel, Chase v. Chase, 2020 ONSC 5083. In it, commencing at paragraph 42, Justice Himel found:

A Child-focused Approach to the School Attendance Issue

[42] I adopt the reasoning set out in Droit de la faille – 20641, supra. The Ontario Government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns. While the parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children, I decline to consider same. There are experts on all sides of the COVID-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the Ontario Government.

[45] There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100 per cent safe for children to return to school. However, the risks of catching COVID-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parent’s need for childcare. There is no end in sight to the pandemic and, as such no evidence as to when it will be 100 percent safe for children to return to school. The Ontario Government has determined that September of 20220 is an appropriate time to move on to a “new Normal” which includes a return to school.

[46] I note that the Ontario Government did not hesitate to shut down all schools in March 2020 and has declined to re-open them until now. The Ontario Government has articulated in the media that they will not hesitate to shut down schools again if the number of COVID-19 cases increases materially.

28In that case, Justice Himel found that all of the above factors weighted in favor of the subject child returning to school. Justice Himel noted, however, in paragraph 48 of her decision: “There is, however, at least one issue that may warrant an order for online rather than in-person attendance, and it is as follows: If W.C. returns to school will he, or anyone in either parents’ home, be at an unacceptable risk of harm?”

29Justice Summers recently dealt with the issues of “unacceptable risk of harm” in the case of Joachim v. Joachim, 2020 ONSC 5355. In that case, the subject children were in a shared parenting situation with a 2/2/5/5-day schedule. Justice Summers was provided with evidence which from the mother’s husband’s doctor which confirmed that he experienced two significant illnesses between October of 2019 and January of 2020, which resulted in him being at high risk of complications if ill with COVID-19. Justice Summers indicated at paragraph 23: “I am most persuaded by the medical evidence regarding the risk Mr. Ambroise faces if exposed to the COVID-19 virus and the evidence of his decision to give up in-person time with his children to help minimize the risk to himself and the baby.” Justice Summers found at paragraph 24: “I am satisfied that the risks to the health and well-being of the mother’s household presently outweigh the benefits of in-class learning for the girls.”

30Mr. Davey submits that the court apply the reasoning in Joaquim to come to the same conclusion with respect to Cole. However, I am of the view that Joaquim is distinguishable from the case before me on a number of grounds. First, the children in Joaquim were in a shared parenting arrangement; in this case, Cole is, by the terms of the parties’ Separation Agreement, to be in the primary care of his mother.

31Second, Justice Summers was provided with evidence from Mr. Ambroise’s doctor which satisfied her as to the nature of the risks he faced if he contacted COVID-19. I was not.

32Third, there was no evidence in Joaquim that the children experienced any social, developmental or psychological obstacles. In this case, Cole has been diagnosed with ADHD and learning disabilities for which he receives or has received a great deal of support. Much of that support continues to be available to him through his IEP and transition to Henry Larsen school. Additionally, Cole requires contact with his peers for socialization and to maintain and nurture the friendships he had finally been able to make at Convent Glen School.

33Fourth, Justice Summers found the children in Joaquim to be “strong students” who are “surrounded by trained educators in both households to help them”, which is not the case here. Cole struggles at school and requires support and attention from his educators.

34While I accept that there may be some risk to Mr. Davey and his partner if Cole is exposed to COVID-19 at school, I nevertheless find that it is in Cole’s best interests to attend school in-person. To the degree that a risk exists, Mr. Davey will have to manage it. If he feels the risk to himself and Ms. Eskritt is too high, which I do not know based on the evidence before me, Mr. Davey may have to forego in-person visits for a time, or conduct virtual or socially distant visits with Cole until such time as the risk has abated (as Ms. Davey did at the beginning of the Pandemic).

35My temporary order will, therefore, be as follows:

1. The child, Cole Allen Davey, born July 7, 2009 shall immediately return to and remain in the primary care of the Applicant, Ms. Davey;

2. Cole shall be registered Henry Larsen Elementary School and shall attend in-person; and,

3. Commencing September 25, 2020, the Respondent, Mr. Davey, shall have parenting time with Cole every second weekend from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, as well as any other holiday time as set out in the Separation Agreement dated December 11, 2015.

36If the parties are unable to agree on liability for the costs of this motion by October 15, 2020, counsel may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.