Court File and Parties

Court File No.: FC-20-509-00 Date: 2021-03-12 Superior Court of Justice - Ontario

Re: Gary Porteous, Applicant And: Jennifer Fowler, Respondent

Before: The Honourable Mr. Justice J.P.L. McDermot

Counsel: Evgeniy Osipov, Counsel for the Applicant Jenivieve De Vries, Counsel for the Respondent

Heard: March 11, 2021 via Zoom

Endorsement

[1] Motion for a contact order brought by the Applicant Father. The motion was heard and argued yesterday.

[2] These parties separated in March 2020. The parties disagree as to how that came about. Suffice to say that the mother and the children ended up in York Region and are living with her new partner. Mr. Porteous remains in the matrimonial home.

[3] The parties have two children, Lucas, who is 12 and Shayla who is 6. Other than several short visits, including a court ordered visit for Christmas access, it appears that the Applicant has not seen his children since separation.

[4] Or almost never. In June, when the Respondent showed up with the children to pick up things at the matrimonial home, there was an angry encounter in front of the children, who apparently were told by the Applicant to “get off the property” and that they should “go live with your new Daddy.”

[5] The Applicant requests contact with the children. He notes that he needs contact with the children so that the OCL investigator can observe him with the children. He says that he was always an involved parent until the Respondent exercised self help removing the children from the jurisdiction and refusing contact.

[6] The Respondent says that contact is not necessarily in the children’s best interests. The York Region C.A.S. notes that neither of the children wants to see their father. Lucas spoke of family violence perpetrated by the Applicant and the Society verified family violence and physical discipline by the Applicant. The Office of the Children’s Lawyer has agreed to conduct an investigation and I am told that there will be a disclosure meeting with the OCL investigator on May 12, 2021.

[7] Notwithstanding all of this, both parties agreed that some contact was in the best interests of the children. The issues between the parties resolved themselves down to the frequency, supervision and requirements of access. Much of the conflict surrounds covid. The Respondent is vulnerable to covid and her doctor says that “due to her medical conditions and immunodeficiency she may get benefit from avoiding high risk situations for COVID 19.”

[8] The Respondent says that the visits should be two hours in length every two weeks. She wants to supervise the visits from her car to ensure that the visits are safe and the Applicant adheres to covid protocols. She says that all of the visits should be outdoors with double layer masks and with social distancing.

[9] The Applicant reluctantly agrees with the two hour duration of the visits and the supervision requirements. However, he thinks it inappropriate that the Respondent supervise access. He suggests that his sister or his mother supervise access. He also wants the visits to be inside the home. He wishes the visits to be every weekend and agreed to provide covid testing results on a weekly basis. He said that he will comply with all applicable covid requirements including staying in his family bubble and not having contact with those individuals for the three days prior to the visits.

[10] I am concerned about Lucas’ views and preferences as expressed in the correspondence from the C.A.S. I am also concerned about the verification of risk from family violence.

[11] Contact between the Applicant and the children is governed by the best interests of the children as set out in s. 24 of the Children’s Law Reform Act and the parties are willing to ignore Lucas’ views and preferences. However, I am not willing to ignore the verified risk of domestic violence between these parties. For that reason, I do not believe it to be in the best interests of the children that the Respondent be present at all access visits, even if it is in her car. If she perceives a breach of covid protocols and intervenes, that invites the exact problem that the C.A.S. has verified and may yet again result in the parties fighting in front of the children. The Respondent is an inappropriate supervisor for that reason, especially when at least one party says that the Christmas visit did not go well.

[12] The Respondent objects to the Applicant’s mother or sister supervising access. She does not provide any evidence as to why they would be inappropriate other than her fear that they will not enforce covid protocols during the visit. However, I believe that because of the domestic violence issues and the inability of these parties to communicate, that they are in a better position to enforce covid requirements than is the Respondent. There is certainly a better chance that the Applicant will listen to them than listening to the Respondent.

[13] As well, if the observation by the OCL investigator is an issue, it is more natural and relaxed for the children to be in the presence of the Applicant and his family than to have the visit take place in the presence of the Respondent.

[14] As well, the Respondent insists upon the visits being outside. I observe that we are in the middle of March and that the weather is still unpredictable. An outside visit on a cold March day cannot be seen as a pleasant experience by the children or the Applicant. The doctor’s letter says that the Respondent must avoid “high risk situations for covid 19”, and I do not define an access visit with the father in his home as high risk, if he respects covid requirements and protocols and supplies a weekly covid test. The fact that the Applicant works with the public through his job is not a basis for refusing access even where a parent is vulnerable: see S.D.B. v. R.B.B., 2020 ONSC 2790. At para. 16, Fryer J. notes that “there are many people who cannot work from home and who need to work to support their family”. She says that “to suggest that parenting time should be suspended simply because a member of the household works outside the home is not reasonable.” I agree.

[15] As well, in C.L.B. v. A.J.N., 2020 ONCJ 184, Sherr J. suggested that the medical report provide more than does the one filed by the Respondent. He states at para. 31 that to restrict face to face contact, “a medical report should be provided setting out the child’s medical condition, any increased vulnerability the child has with respect to the COVID-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.”

[16] The medical report in this case does none of that. It only says that the Respondent “may get benefit from avoiding “high risk” encounters. It does not specify the exact conditions that make the Respondent vulnerable. It does not define “high risk.” The fact that the Respondent works outside the home combined with face to face access in the Applicant’s home does not make for a high risk encounter, especially where the Applicant undertakes to follow covid protocols and the access supervisors undertake to ensure that there are no breaches of any covid protocol. I cannot say that I completely understand the somewhat Byzantine Covid rules in Ontario, but I understand that at this time, Code Red protocols in Simcoe County permit indoor gatherings inside one’s home if the numbers are under five. [^1]

[17] Therefore, I am going to accede to some of the father’s suggestions regarding contact. The visits are limited by the Respondent’s ability to deliver the child to the Applicant’s home on the weekends she has her Ketamine treatments, so the visits must be three of four weekends, with the Respondent advising the Applicant as soon as she knows that she is receiving a that treatment, in which case access shall not take place that weekend.

[18] Therefore temporary without prejudice order to go:

a. The Applicant shall have contact with the children for two hours three Saturdays out of four for two hours with the exact times to be arranged between counsel. b. The weekend that the Applicant does not have access shall be the weekend (one of every four) when the Respondent receives her ketamine treatment. The Respondent shall advise the Applicant by text as soon as is practicable of each weekend that she shall be receiving that treatment. c. The Respondent to pick up and deliver the children for contact. d. The contact shall be supervised by the Applicant’s mother or sister. Prior to the visit commencing, they shall each enter into a written undertaking to be delivered to the Respondent’s solicitor that they shall ensure the safety of the children during supervision, including the following: i. They shall be present with the Applicant and the children at all times during the visit; ii. They shall end the visit forthwith if the children are put at risk in any way and shall forthwith contact the Respondent if that occurs; iii. They shall deliver the children to the Respondent if the visit is ended forthwith upon request; and iv. They shall ensure that all applicable covid requirements are met during the visit. e. The visit may take place in the Applicant’s residence, provided that the Applicant shall comply with all recommended and applicable covid protocols in force in the jurisdiction in which he resides. For further certainty and in addition, the Applicant shall: i. Obtain a covid test on the Monday before the scheduled visit and provide the result to the Respondent forthwith upon receipt; ii. Other than work, he shall remain within his family and friends bubble which shall include only the following: a. Kelly Stuvbert; b. His mother, Shirley Flaxman c. His sister, Katherine Porteous; and d. Frank Tartaglia iii. The Applicant shall not have contact with any of these individuals for the three days prior to the contact visit. iv. Masks shall be used by the Applicant, the supervisor and the children throughout the visit. f. The parties may review the issue of contact with the children subsequent to the disclosure meeting of the OCL Social Worker, and to that purpose, this motion is adjourned to my list on June 17, 2021 (Bracebridge).

[19] Based on the submissions in argument, success is largely divided. The parties negotiated and agreed on some issues during the day. There shall be no order as to the costs of this motion.

[20] The parties have agreed on child support and a buyout of the home and there shall be an order to go as per the Consent attached. SDO to issue.

McDermot J. Date: March 12, 2021

[^1]: No regulation provides any clarity as to whether contact visits with one’s children are gatherings outside that parent’s household but those children are clearly family members.