COURT FILE NO.: FC-17-788 DATE: 20200923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.F. Applicant
– and –
L.K. Respondent
Matthew Hickey, for the Applicant
Alex Dutka, for the Respondent
HEARD: September 16, 2020
REASONS FOR DECISION
CHARNEY J.:
Introduction
[1] On August 31, 2020, Leef J. considered the respondent’s urgent ex parte motion and granted a temporary order that the applicant’s access with her seven year- old daughter be supervised by one of three specified members of the applicant’s family. The matter returned to court on September 16, 2020, to be reviewed after notice was given to the applicant.
[2] The issue on this motion is whether the applicant’s current access should be varied as a result of the concerns raised by the respondent.
Background Facts
[3] The applicant is a post-operative transgendered person, and the biological father of the seven year-old child (the child). The respondent is the child’s biological mother.
[4] The parties have agreed that the respondent may be referred to as the “Bio Mom” and the applicant as the “Other Mother”. For ease of reference I will adopt those identifications in referring to the parties.
[5] The parties resided together from 2013 until August 2016, when they separated.
[6] Following lengthy litigation, the parties were able to reach a consent Final Order on June 20, 2019 (the Final Order). The Final Order provided the Bio Mom with sole custody and primary residence of the child.
[7] The Final Order also established a graduated access schedule for the Other Mother. The access schedule commenced with supervised access in June 2019, graduating to unsupervised overnight access one day a week commencing January 2020, and finally alternate weekend plus one overnight a week of unsupervised access commencing March 2020.
[8] The parties had a dispute regarding the interpretation of the Final Order (what time the Other Mother’s weekday access ended once schools were closed due to COVID-19 in March 2020), and this dispute was resolved by 14B motion (motion in writing), by the endorsement of Nicholson J. dated July 21, 2020. The full details of this dispute are not relevant to this motion, but the Other Mother’s refusal to accept and comply with the July 21, 2020 Order does raise a concern that I will address later in these reasons.
The Ex Parte Motion
[9] On August 27, 2020, the Bio Mom brought an urgent ex parte motion for a temporary order that the Other Mother’s access be supervised.
[10] The Bio Mom had recently learned that the Other Mother was involved in the “sex worker industry” and was seeing clients in her condominium residence. This raised a number of concerns:
i. The Bio Mom had no information regarding the precautions that the Other Mother was taking during the COVID-19 pandemic. She states:
I am unfamiliar with the nature of sex work. However, I find it unlikely that proper COVID-19 precautions can be adhered to during sessions with clients, due to the very nature of the work.
ii. The Bio Mom was concerned that the Other Mother’s clients might be present in the condominium on weekends that the daughter was staying overnight with the Other Mother.
iii. Given the content of the on-line advertisements, the Bio Mom was concerned that the daughter might be inadvertently exposed to sex-related photographs or paraphernalia that are inappropriate for a seven-year old child.
iv. The Bio Mom was concerned that the child might inadvertently come into contact with the Other Mother’s client’s bodily sexual fluids.
[11] Leef J. concluded that the affidavit evidence in support of the urgent ex parte motion justified a temporary, without prejudice, supervision order. She held:
The Respondent has raised serious concerns regarding the risk of harm to the child if the Applicant and/or her partner are engaging in the sex trade in their home, in particular if the child is present at the time.
[12] When the motion came before me for review, there was some dispute regarding the admissibility of some of the evidence that the Bio Mom was relying on to support her allegation. In particular, the Bio Mom relies on information provided by unidentified third parties in several paragraphs of her affidavit and as the source for Exhibits B and C of her affidavit. Rule 14(19) of the Family Law Rules allows a judge to admit affidavit evidence the affiant learned from someone else, but only if “the source of the information is identified by name”. The reason for this rule is obvious. Evidence from anonymous sources is easily fabricated and inherently unreliable. Opposing parties must know the identity of the source of the information so that the evidence can be verified and tested.
[13] At the outset of the hearing of the motion, the parties agreed that Exhibits B and C should be struck in their entirety, and all paragraphs in the affidavit based on those exhibits should be struck. Accordingly, I have disregarded all evidence in the Bio Mom’s affidavit that is based on those exhibits.
[14] This leaves Exhibit D, which presents on-line advertisements from a website “LeoList”. The Bio Mom does not state in her affidavit that these were provided to her by third parties, and I will consider these on the understanding that the Bio Mom saw the original webpages herself.
[15] Her affidavit indicates that although the LeoList advertisements use pseudonyms for the Other Mother, she can identify the Other Mother and her partner from the photographs provided in the advertisement. She can also confirm that the telephone number given in the advertisement is the Other Mother’s emergency phone number.
[16] The advertisement indicates that the Other Mother is available for weekend work, and the Bio Mom is concerned that this might include weekends that Other Mother has overnight access with their daughter.
[17] The Other Mother has now had an opportunity to submit her own affidavit evidence. In her affidavit, Other Mother states:
My partner and I exercise discretion regarding whom we share personal experiences with.
We have only a few guests attend our home. We screen them in a public social room before they enter our apartment. We ask them if they have been out of the country for the previous two weeks, whether they are experiencing any indications of fever or headache, or any other illness. We ask them if they have attended any large social gatherings, or if they have come in contact with any person with illness.
We have purchased an abundance of cleaning supplies. We have disinfected the apartment from top to bottom when we moved in and clean with alcohol and bleach based products on a regular basis. I am immune compromised myself, so the issues of cleanliness is paramount…
Our child never has, and never will be, exposed in any way to any potential partner of mine that is not in a long term caring relationship.
Our child is not exposed to adult information, pictures, materials, etc. of any kind…I even have two wireless networks set up in our apartment. One is exclusively for our child’s use only…
Analysis
[18] While Leef J. was primarily concerned with the possibility that the child might be present while the Other Mother and/or her partner were engaging in the sex trade, the Other Mother’s affidavit addressed that issue directly. She states that the child has never and will never be exposed “in any way to any potential partner of mine that is not in a long term caring relationship”. In the absence of any evidence to the contrary, this appears to settle that issue.
[19] As such, the primary focus of the Bio Mom’s argument before me was her concern that the Other Mother was not adhering to proper COVID-19 protocols during her interactions with her clients.
[20] Numerous cases since the advent of the COVID-19 pandemic have recognized that parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives. The jurisprudence that has developed since the beginning of the COVID-19 pandemic may be summarized as follows:
i. There is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child.
ii. While there is a presumption that existing parenting arrangements and schedules should continue, both custodial and access parents and members of their households are obliged to strictly adhere to COVID-19 safety protocols, including social distancing, hand washing, use of face masks and compliance with all public safety measures. They must also ensure that their children comply with these protocols while in their care.
iii. A parent concerned about the other parent’s adherence to COVID-19 safety protocols cannot unilaterally deny the other parent’s court ordered access or parenting time, but must bring a motion to seek a variation. The parent initiating such a motion is required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
iv. The parent responding to such a motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
v. Both parents will be required to provide very specific and realistic proposals which fully address all COVID-19 considerations, in a child-focused manner.
vi. A parent cannot unilaterally impose on the other parent conditions in addition to the safety precautions required by government and public health officials. If one parent is of the view that additional precautions are required, and the other parent does not agree to follow them, the parent seeking to impose additional requirements must bring a 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.
[21] See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; Almadi v. Kalashi, 2020 ONSC 2047, at paras. 7-8; Skinner v. Skinner, 2020 ONSC 3226, at para. 35.
[22] Finally, the courts have recognized that some circumstances may exist where parenting arrangements and schedules will have to be altered as a result of one parent’s refusal or inability to comply with government mandated COVID-19 safety protocols. In Ribeiro, Pazaratz J. stated, at paras. 13-14:
In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
[23] In the present case the Bio Mom has met her initial onus of presenting evidence “of behavior or plans by the other parent which are inconsistent with COVID-19 protocols”.
[24] COVID-19 is not a sexually transmitted disease. It is, however, transferred from person to person through close physical contact with respiratory droplets (eg. coughing, sneezing, spitting, laughing, singing) or touching an object or surface with the virus on it, then touching your mouth, nose or eyes with unwashed hands. It can be spread by common greetings such as handshakes, hugs or kisses. COVID-19 can be spread by infected individuals who have mild symptoms or who have not yet or who may never develop symptoms (https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/guidance-documents/risk-informed-decision-making-workplaces-businesses-covid-19-pandemic.html).
[25] Durham Region, where the parties to this proceeding reside, is currently listed as an area in Stage 3 of reopening: Stages of Reopening, O Reg 363/20, schedule 3.
[26] Given the mechanism known for the transmission of COVID-19, persons providing personal services in Stage 3 areas, including hairstyling and barbering, ear and body piercing, electrolysis, nail salons, tanning salons, spas and aesthetic services must comply with strict requirements when providing these services. When the nature of the services offered do not permit physical distancing, patrons must wear face coverings except while receiving services on an area of their face that would otherwise be covered by a face covering.
[27] Workers must also wear face coverings and other appropriate personal protective equipment, including gloves.
[28] See:
a. Rules for Areas in Stage 3, O Reg 364/20, schedule 2, s. 4;
[29] While the published regulations and guidelines do not refer specifically to sex workers, it is clear that the listed personal services are just examples, and the regulations and guidelines are intended to apply to any person offering similar personal services. This would include sex workers.
[30] The affidavit filed by the Other Mother does not provide reassurance that she is meticulously adhering to COVID-19 safety measures. While her affidavit references the use of disinfectants, she makes no reference to social distancing or the use of face coverings by her clients or herself. She does not indicate how many “guests” she and her partner see in a week, or whether the services offered potentially involve an exchange of respiratory droplets. These facts are within her knowledge exclusively, and she cannot expect the court to approve of her access time if she does not provide this important information.
[31] This is not a case in which the Bio Mom is seeking to impose safety precautions that are not required by government policy or regulation. The requirement for personal service workers to wear a face mask is a current government policy.
[32] Counsel for the Other Mother argues that even if the Other Mother is not complying with COVID-19 protocols, the remedy sought by the Bio Mom makes no sense. If the Other Mother is non-compliant with COVID-19 protocols during her meetings with clients, supervised access will be ineffective at protecting the child.
[33] I agree with this position. Supervised access made sense when the concern was that the child might be present while the Other Mother and/or her partner were engaging in the sex trade. It makes no sense if the concern is that the Other Mother (or her client) is not wearing a mask during their transaction.
[34] This does not, however, leave the Court without any remedial authority.
[35] Section 29 of the Children’s Law Reform Act states that the court shall not make an order that varies an order in respect of custody or access made by a court unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. In considering the child’s best interests, the Court is not restricted to the precise remedy sought by either party, but must fashion a remedy that meets the best interests of the child.
[36] If the court finds that there has been a material change in circumstances that affects or is likely to affect the best interests of the child, it must then make an order in the best interests of the child. This includes suspending an order on terms.
[37] The Other Mother’s involvement in the sex trade, together with her failure to comply with COVID-19 protocols applicable to personal service workers, is a material change in circumstances since the Final Order of June 20, 2019.
[38] In the present case, there are two possible remedies. The first is to simply order the Other Mother and her partner to comply with COVID-19 protocols when seeing their clients. I have a serious concern that, in this case, such a remedy would not be sufficient.
[39] As indicated above, at para. 8, following the July 21, 2020 Order clarifying the Other Mother’s access time, the Other Mother’s demonstrated a refusal to accept and comply with that Order. For example, on July 22, 2020, counsel for the Bio Mom wrote to the Other Mother, enclosing a copy of the July 21, 2020 Order, and asking that she comply with its terms at the next access exchange. The Other Mother (who at the time was not represented by counsel) replied, stating her intention to keep the child in accordance with her understanding of the schedule “unless the order is fully revised by attending court”.
[40] The Other Mother’s recalcitrance in this regard does not bode well for a simple order that she comply with COVID-19 protocols. Moreover, the protocols relating to personal service workers are well known through the community, and I am concerned that the Other Mother has, apparently, simply disregarded them to date.
[41] Based on the evidentiary record before me, I find that it is in the child’s best interests to temporarily suspend the Other Mother’s physical access with the child and replace it with video access. I stress that this is a temporary measure. In balancing the harm of COVID-19 exposure to the child with harm to her being denied face to face contact with the Other Mother, I find that it is in her best interests to temporarily suspend the Other Mother’s face to face access at this time.
[42] This is a temporary Order based on the evidence before me on this motion. It remains open to the Other Mother to provide the court with evidence that she and her partner undertake to the court to abide by the relevant COVID-19 protocols, including the wearing of face masks, and a realistic proposal for how she intends to comply with this undertaking given the nature of her work. If it is not possible to comply with the relevant COVID-19 protocols and continue as a sex worker, then, if she wants to return to face to face access with the child, she will have to find some other line of work during this pandemic.
Conclusion
[43] I therefore make the following temporary Order, varying the Final Order of June 20, 2019:
[44] The access provisions in paragraphs 14 – 19 of the Order of His Honour Justice Nicholson, dated June 20, 2019, are varied such that the applicant’s, J.F.’s, (the Other Mother’s) physical access with the child, E.F., d.o.b. [redacted for publication], 2013, is suspended until further order of the court. The applicant will have telephone or video access with the child for one hour on each day that she would have had physical access.
[45] The applicant (Other Mother) may bring a 14B motion on notice to the respondent L.K. (Bio Mom), to my attention, to vacate or amend this temporary suspension if she and her partner undertake to the court to abide by the relevant COVID-19 protocols, including the wearing of face masks, and provide a proposal for how she intends to comply with this undertaking given the nature of her work.
[46] If the parties cannot agree on costs, the respondent may serve and file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision. The applicant may serve and file costs submissions on the same terms within 20 days thereof.
Justice R.E. Charney
Released: September 23, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.F. Applicant
– and –
L.K. Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: September 23, 2020