Court File and Parties

Court File No.: FC-20-460 Date: 2021-03-15 Superior Court of Justice - Ontario

Re: Danica Carey, Applicant And: Alexander Bryan, Respondent

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

Counsel: Elle Venhola, Counsel for the Applicant

Heard: Motion on Notice - March 2, 2021 via Zoom

Endorsement

Background

[1] The Applicant and the Respondent are the parents of an 18-month-old child, Malikai.

[2] The parties separated on March 25, 2020 after a two-year cohabitation. The separation coincided with the onset of the COVID-19 pandemic in Ontario. Unfortunately, along with many residents of this province, the parties’ parenting plan for Malikai was a victim of that pandemic.

[3] The Applicant, who has primary residence of the child, is particularly vulnerable to the pandemic. She has Crohn’s Disease and is immunocompromised both because of her condition and the treatment for that condition. It is unquestioned that she requires strict compliance by the Respondent concerning COVID protocols during his time sharing with Malikai to ensure that COVID is not brought back into her household; in the absence of this, her life is literally at risk.

[4] This has been a constant battle for her throughout her separation. She perceives that, since separation, the Respondent has ignored COVID protocols putting her at risk. For that reason, she has insisted upon a number of orders requiring the Respondent to take all necessary steps to comply with those protocols. She says that the Respondent has continued to breach COVID rules notwithstanding those orders. For this reason, this matter has had to be actively case managed by Sutherland J., who has seized himself with the conferencing of these matters. Those efforts were to no avail. There is no trust.

[5] The latest iteration of that series of orders was the consent order of Sutherland J. made on January 5, 2021. On that date, the Applicant and the Respondent consented to a temporary order which gave the Respondent contact with Malikai on Tuesdays from 4:00 p.m. to 7:15 p.m. and Saturdays to from 11:00 a.m. to 4:00 p.m., graduating to Saturdays from 10:00 a.m. to 5:00 p.m. However, the order also required both parties to “comply with the COVID-19 protocols as mandated by the Ontario Public Health as set by the Government of Ontario”. The order provides that this included staying in each parties’ particular “bubble” only and that no others would be permitted in that bubble; the order provided that Mr. Bryan’s bubble included only his mother, Denlenne Bryan, his stepfather, Barry De Geer, his sister, Jade Bryan and his great grandmother, Elsie Geldart. Ms. Carey says that Sutherland J. emphasized that this would prohibit visits from anyone other than those individuals including girlfriends or friends; Mr. Bryan agreed that this was the case.

[6] Ms. Carey never accepted that Mr. Bryan would comply with the order; she says that she has been burned before. She said that she “was not convinced that he would follow the January 5th order” so she decided that she would “occasionally drive near his house to see if other vehicles were parked there”. [^1] Her drive-bys were anything but occasional: she or her mother went by on January 6, 7 and 8, 2021 and twice on January 9, 2021 at 1:30 a.m. and 8:00 a.m. She refused the Respondent’s first access visit under the order scheduled to take place on January 9, 2021 because she saw cars parked outside his residence. She retained a private investigator who also confirmed a vehicle parked outside the Respondent’s residence.

[7] Because of this, Ms. Carey elected not to comply with the order and refused contact. She says that because the Respondent was not complying with COVID requirements, she also need not comply because of her vulnerabilities. Justice Vallee was not impressed upon return of this motion on February 11, 2021; she re-iterated that the access take place, stating that the Respondent “shall have parenting time with Malikai on Tuesdays from 4 p.m. to 7:15 p.m. and on Saturdays from 10:00 p.m. to 5:00 p.m.” being “the times set out in Justice Sutherland’s order dated January 5, 2021.” She emphasized that the parties “must follow the terms of Justice Sutherland’s order”. She ordered testing on Mondays and Fridays so that test results would be available for the visits.

[8] Again, to no avail. Mr. Bryan got a test; he was told he was clear but could not get a written response. Ms. Carey responded by saying that she required a written test result before granting contact. Other than one brief visit, she has continued to refuse any parenting time notwithstanding numerous clear tests provided to the court by the Respondent.

[9] In sum, Ms. Carey has refused parenting time under the January 5 order other than one Tuesday visit that took place on January 11 and another 20-minute visit that took place in February. There have been no other visits. In this motion, brought almost immediately after the Sutherland J. order of January 5, 2021, Ms. Carey seeks to vary the Sutherland J. order to supervised access only; Mr. Bryan has brought a counter-motion for police assistance, makeup access and for a restraining order preventing the Applicant or her mother coming within 100 metres of his residence.

Result

[10] For the reasons set out below, other than continuing the COVID testing by Mr. Bryan, I have dismissed the Applicant’s motion to change the order of Sutherland J. Access must resume immediately. I also have dismissed much of Mr. Bryan’s motion but I have seized myself of any future enforcement motions and provided a mechanism for expediting enforcement proceedings.

Analysis

[11] The Applicant says that the Respondent breached COVID protocols contrary to the January 5 order. I will examine that below. However, I need to comment on the actions of the Applicant and her counsel leading up to this motion. Ms. Carey elected to exercise self-help and refuse access because she thought that Mr. Bryan was breaching protocol. She decided to withhold contact in the face of not only one order, but two. She says she was justified in doing so because of the risks to her from COVID-19.

[12] Mr. Bryan pointed out, quite accurately, that if he refused to return Malikai after a visit because he thought that there was a risk to the child, the whole weight of the family court system would have crashed down upon him. He would have been in trouble and subject to emergency motions and costs. He noted that this contrasts with the breaches of the order by the Applicant in refusing access; she appears to have been able to do that with impunity. The result is that the Respondent has not received his parenting time as a result of cars parked outside of his residence, some Instagram posts and as a result of the Applicant’s own investigation of the Respondent’s actions.

[13] There were many things that the Applicant could have done. She could have brought a motion without notice to suspend access because of risk of harm; if a judge had thought that there was immediate risk to the Applicant’s or child’s health, he or she could have made an order under r. 14(12) of the Family Law Rules. [^2] The Applicant could also have expedited the selection of a parenting coordinator as contemplated by para. 6 of the Sutherland J. order. She did none of these things. She elected instead to bring a motion in the normal course, which meandered its way to me nearly two months after the initial breach of the order while the Applicant continued to refuse contact. Although Ms. Venhola acted quickly to bring the motion, if this matter was sufficiently urgent to go into breach of the contact provisions in the order, it was the obligation of the Applicant to bring this to the immediate attention of a judge and neither she nor her counsel did so. When I queried counsel during argument as to whether advice was given to withhold access or comply with the order, I did not receive a satisfactory answer.

[14] This is, in my view, litigation misconduct. No one is entitled to unilaterally breach a court order because they think that the other party is doing so. I am supported in this position by J.F. v. L.K., 2020 ONSC 5766 at para. 20 in which Charney J. confirms that where there is a suspected breach of COVID protocol, a party “cannot unilaterally deny the other parent's court ordered access or parenting time, but must bring a motion to seek a variation.” That is our system and to depart from that would invite chaos because we presume that the courts and not the parties are the ultimate arbiter of compliance with court orders.

[15] But apart from this, going forward, it is necessary to review whether the Respondent has acted contrary to COVID-19 protocols warranting a change in the contact provisions in the order.

[16] The issues of changing the contact order of January 5 involve an examination of whether there has been a change in circumstances within the meaning of s. 29 of the Children’s Law Reform Act. Clear and ongoing breaches of COVID protocols, as contemplated by the order, would be such a change. If the court finds that there is a change in circumstances, then the court must review whether it is in the best interests of the child (which would of course involve the health and safety of his primary caregiver, Ms. Carey) to change the order.

[17] The issue of contact between the Respondent and Malikai are governed by Malikai’s best interests. Those are outlined in s. 24(3) of the CLRA and include the relationships and connections between the Respondent and the child. However, it is clear that if the Applicant caught COVID because the Respondent breached the COVID protocols and became ill or worse, this would also affect the best interests of Malikai. The Applicant is the primary caregiver of the child and anything that affects her health and welfare also affects that of Malikai. In other words, if the Respondent’s actions put the Applicant’s health at risk, this is clearly a change in circumstances and contrary to the best interests of Malikai which would warrant a change in the contact provisions of the order.

[18] It is also clear that clear evidence of breaches of COVID protocols by Mr. Bryan would warrant a variation of the access order and would warrant restrictions on contact between him and the child. Where someone breaches COVID protocols, the court will restrict contact between that parent and the child. This has been described as a “zero tolerance” policy: see Ribeiro v. Wright, 2020 ONSC 1829 at para. 14 and Toth v. Stockton, 2020 ONSC 2187, at para. 23.

[19] The issue of a change in circumstances and the best interests of Malikai therefore involve a consideration of whether the evidence shows, on the balance of probabilities, that the Respondent has breached COVID protocols as required by the Sutherland J. order.

[20] In her affidavits, the Applicant identifies the following as breaches of COVID protocol by the Respondent:

a. On January 6, 2021, a day after the consent order, the Applicant saw a silver Ford Escape parked outside of the Respondent’s home. That vehicle was also seen outside the Respondent’s home on January 7, 8 and 9, 2021. The Applicant says that her mother saw a woman leave the home on January 9, 2021 who she believed to be the “Respondent's girlfriend Anna-Lisa”. She says that she based this on her mother’s description of the woman, and the fact that “I had encountered Anna-Lisa before.” [^3]

b. On January 8, the Applicant’s mother saw the truck of a mutual friend, Morgan Hristovski parked outside of the Respondent’s home. On January 9, that truck was there again along with a Volkswagen and a Black Honda. The Applicant suspects that the Respondent hosted a party at his residence on that date.

c. On January 10, the Applicant had a private investigator watch the Respondent’s residence and they saw the same silver Ford Escape SUV. They observed a woman leave the residence and return. They saw the Respondent through a window unmasked but not the woman. The investigator determined that the vehicle was registered to Annalisa Indndovino. [^4]

d. On February 14, 2021, the Applicant saw Instagram posts of a snowmobile outing that the Respondent had with his family. She says that the posts show that the Respondent with two other families, the Downeys and the Wiltons, who are not in the Respondent’s bubble. She says another individual who was there, Karen Peever, is also outside the bubble.

e. The Applicant says that the Respondent’s tenant has posted Instagram photos of her at the Respondent’s apartment after January 5, 2021.

f. The Applicant says that Annalisa’s SUV has been seen outside of the Respondent’s residence on January 11, 29 and 30 as well as February 5, 8, 10, 15, 16, 18 and 19, 2021. The private investigator noted that the blinds were at times drawn in the Respondent’s home when Annalisa’s vehicle was parked outside.

[21] The Respondent provided responding material to the first three allegations which were contained in the Applicant’s affidavit of January 11, 2021. He says that the private investigator was not informed of the fact that he has an apartment in the basement of his home. The entrance to both the apartment and Mr. Bryan’s residence are gained through the front door of the home so the investigator would not know whether someone entering the home was going to the apartment or the Respondent’s home. He provided affidavits from his tenant and his friend, Morgan Hristovski sworn January 14, 2021 confirming that both Mr. Hristovski and Ms. Indndovino were visiting Mr. Bryan’s tenant and not himself.

[22] The Respondent did not respond to the later allegations contained in subparagraphs d, e and f above. During submissions, he said that postings on Instagram can be posted up to two years after the event and that the photos do not prove that the snowmobiling or visits to Mr. Bryan’s home took place after January 5, 2021. As well, he notes that none of the pictures of the snowmobiling show that anyone had failed to socially distance and in fact there were no photos of the people outside of the bubble with the Respondent.

[23] Ms. Carey points out that there was some evidence of the fact that the Respondent’s tenant was in Vancouver based on posts of an airline ticket, from Vancouver airport and in B.C. from January 25 on. However, I cannot make out any of the details of the airline ticket including dates of travel from the exhibits posted. In light of the Respondent’s assertion that the photos could be posted anytime up to two years after the event, the posts do not necessarily prove that the tenant was in Vancouver from January 25 on. In any event, Mr. Bryan says that Annalisa could have been in the tenant’s home feeding the cat.

[24] This is corroborated by the Private Investigator’s final report. The investigator observed that on February 9, 2021, the silver SUV was present and that Annalise was seen leaving the home. But he also confirms that the basement lights were on which would indicate that Annalise was in the downstairs apartment when the tenant was in Vancouver. It is as likely as not that she was not at that address to visit the Respondent; she was there to do something else.

[25] The Applicant would say to the court that she could do nothing else to prove that the Respondent was in breach of the protocols. However, that in itself is concerning. The Applicant set out to prove that the Respondent was going to breach the January 5 order; she says in her first affidavit that, “Given the Respondent's history of non-compliance with Covid-19 protocols since April 2020, I was not convinced that he would follow the January 5th order”, [^5] so she decided to drive by Mr. Bryan’s residence on numerous occasions at all hours. She told the Private Investigator that Annalise Indndovino was the Respondent’s “girlfriend” as indicated by the subject of the report: “Alexander Bryan and His New Girlfriend (Social Distancing)” notwithstanding the fact that Ms. Carey was unable to provide any evidence that Ms. Indndovino was, in fact, Mr. Bryan’s girlfriend. She was out to prove a thesis and naturally enough any evidence collected went to support that thesis.

[26] And if Ms. Carey says, “what else could I do” to prove the breaches, Mr. Bryan could ask the same question. As is well known, it is difficult to prove a negative. All that can be done is to deny the allegations and provide evidence if possible that goes to that. He has done so by providing affidavits from his friend and his tenant. He has provided plausible alternative explanations for the vehicles being in his laneway. He could have filed an affidavit responding to the last affidavit filed by the Applicant, but he may have been accused of violating r. 14(20) (filing a reply to a reply affidavit). [^6]

[27] Ms. Carey says that the Respondent has asked her to lie before, and that the affidavits filed by his friend and tenant confirming no contact were similarly lies filed by the Respondent. Apart from the fact that the Applicant is accusing the Respondent and his friends of committing the criminal offence of perjury, this suggestion begs the question of why Annalise Indndovino did not similarly file an affidavit. If Annalise was the Respondent’s girlfriend, surely he would have similarly asked her to lie as he did with the Applicant (who was his former girlfriend when the request to lie was made). There is no other plausible explanation as to why the Respondent has failed to provide an affidavit of Ms. Indndovino other than the explanation provided: she was not his girlfriend.

[28] The Applicant has filed case law indicating instances where access was restricted because of COVID protocol breaches. Those cases are largely distinguishable. In J.F. v. L.K., *supra*, the access parent had left out of his affidavit the protocols that she complied with and in light of the fact that there was evidence that she was in the sex trade, Charney J. suspended contact. In the present case, the Respondent provided details of his compliance with COVID protocols and does not work in a risky profession.

[29] In Blythe v. Blythe, 2020 ONSC 2871, a decision made early in the COVID-19 crisis, the father’s employment as a bus driver were grounds for suspending access. Because we now know more about the disease and mitigation measures, the latter decision might have been decided differently today: see S.D.B. v. R.B.B., 2020 CarswellOnt 5278 (S.C.J.).

[30] In A.T. v. V.S., 2020 ONSC 4198, the court found that the father was “not prepared to follow COVID-19 protocols in the future” (emphasis mine). In the present case, Ms. Carey alleged previous breaches by the father of COVID protocols. The order of January 5 was meant to address those earlier breaches. The father in this case has now said that he will continue to obey COVID protocols and says he has done so since the date of the order. Unlike A.T., the consent order in this case was entered into to address future breaches (and it is also clear that Ms. Carey entered into the consent without any belief that the Respondent would comply with it).

[31] In Abbas v. Downey, 2020 ONCJ 283, there was specific evidence of poor judgment by the father. “Out of an abundance of caution”, O’Connell J. restricted access to virtual and telephone access only where the child was immunocompromised.

[32] Importantly in that case, O’Connell J. said that the party seeking to restrict access should not use self-help, and should present evidence as follows:

There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, [2020] O.J. No. 2662.

[33] I understand why Ms. Carey is terrified of this virus. For her, it may mean life or death because of her condition. Although in Abbas, the court suggested that medical evidence must be filed of the Applicant’s condition, no one is suggesting that Ms. Carey is not vulnerable or that any exposure of her to COVID would have serious consequences affecting the best interests of Malikai. I do not accept Mr. Bryan’s suggestions that the Applicant’s actions are a result of mental health issues; I accept that they are the result of her extreme fear of contracting COVID.

[34] That fear, however, may also have resulted in Ms. Carey’s strong assumption that Mr. Bryan was going to immediately disobey the COVID protocols set out in the January 5 order. If she truly believed that, she should not have consented to the order; it would have been better had she then brought her motion to restrict access but she did not. Upon the order being made, she immediately set out to prove that the Respondent would breach the order, presumably creating a “confirmation bias” defined as, “[t]he tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions.” [^7] Every instance of supposed breach was, to the Respondent, a confirmation of the Respondent’s breach of the order and the Applicant was not willing to accept any other interpretation.

[35] I return to what O’Connell J. said in Abbas, that the moving party must provide “specific evidence or examples” of breaches of COVID protocols. The court found that the Applicant had provided that evidence in that case when the father took the child to a number of stores without masking or following protocols. In the present case, however, the only evidence we have is, as suggested by the Respondent during argument, “speculations and assumptions”. The assumption that the Applicant asks us to make from the vehicles in the laneway were that these people were visiting the Respondent and not his tenant. She wishes us to assume that Annalise Indndovino is the Respondent’s girlfriend without specific evidence of this being provided to the court. She wishes us to assume from Instagram pictures of a snowmobiling outing that the Respondent failed to comply with social distancing requirements and breaches of COVID protocols. She was not willing to accept the Respondent’s explanations of each of these issues, instead choosing to assume that he was breaching the January 5 order.

[36] The court is not willing to make that assumption. The evidence provided by the Applicant show no specific evidence of any breach of COVID protocols; it only shows that there were cars parked outside of the Respondent’s residence, and he has provided evidence explaining the presence of those vehicles. He may have previously breached COVID protocols but the January 5 order was meant to address that and there is no clear evidence of breaches that would warrant an enforcement or contempt motion.

[37] The Respondent has provided clear COVID tests pursuant to the order of Justice Vallee and that has not resulted in access resuming as ordered by her. I have concerns about the Applicant failing to obey the court order or act in a timely fashion in getting this matter before the court. The Applicant’s lawyer did not make herself available after 9:30 a.m. on March 1 to discuss this matter with Sutherland J. and I would have thought that the Applicant’s serious health issues would have given this matter priority in her day. The Applicant has set the agenda since January 5, and it appears to have been one of delay while continuing to deny contact.

[38] I therefore do not find that there has been a change in circumstances since the January 5 order or that the Applicant has demonstrated that it is in the best interests of Malikai to restrict his contact with his father.

[39] For these reasons, I am going to dismiss the Applicant’s motion to suspend or restrict access. I am going to vary the order to provide that the Respondent obtain a COVID test each Monday and provide that test to the Applicant forthwith upon receipt. I am going to provide a means of getting this matter before the court on a timely basis for both parties should there be any further alleged breaches of the January 5 order as well as this order, and if Mr. Bryan fails to provide the COVID testing, I will consider ordering that he provide the Applicant with access to his testing through his OHIP number.

[40] Mr. Bryan has missed approximately 14 visits. However, I am not going to provide makeup access by providing overnight access as suggested by the Respondent. That would change the fundamental nature of the Respondent’s contact with this very young child as agreed to in January. This child is just being weened at present, and the expansion of access to overnights is for another day when more evidence as to whether this is in the child’s best interests will be available.

[41] Makeup access is really payback for lost parenting time. It is intended to return to the parent who was deprived of visits with the contact that he has lost.

[42] However, makeup access or contact is subject to the best interests of the child and the access must be limited at this time because, through no fault of Mr. Bryan, the child has had little contact with him for some time. I am not convinced that the Respondent’s claim for makeup access is necessarily in the child’s best interests as the court is now resuming contact with the child after some time away from him. The court must be cognizant of Malikai’s comfort level and the Respondent’s claim for makeup access is therefore dismissed.

[43] The Respondent has requested police assistance to enforce contact. I am not prepared to do that at present because of the trauma to the child of the police showing up to force a contact visit where the Applicant continues to refuse access. I am going to seize myself of enforcement of this order and the order of Sutherland J. dated January 5, 2021 with terms to allow this matter to be returned to court quickly.

[44] I am similarly going to dismiss the Respondent’s claim for a restraining order. A restraining order under s. 46 of the Family Law Act [^8] may only be granted where the “applicant has reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody”. None of these apply here and there is no evidence of risk of harm. I understand that the numerous drive-bys of the Applicant are intrusive and disturbing to the Respondent but they are explained by her fear for her safety because of COVID and they do not constitute risk of harm where the Applicant remains on public property.

[45] Therefore, temporary order to go:

a. The order of Sutherland J. dated January 5, 2021 shall be varied to add the following term:

“The Respondent shall obtain a COVID test on the Monday of every week and shall provide the results of each COVID test to the Applicant forthwith upon receipt. If the Respondent fails to provide the results of the test, the Applicant may apply by 14B motion on notice to the Respondent to obtain his OHIP number so that the Applicant may obtain the test results directly.”

b. The motion of the Applicant is otherwise dismissed and the parties shall return to the contact provisions of the order of Sutherland J. dated January 5, 2021 as if there had been no interruption in the contact under that order.

c. I am seized of enforcement of the terms of the order of Sutherland J. dated January 5, 2021 as amended by this order including any 14B motion to obtain the Respondent’s OHIP number. If there is a perceived breach of the order, either party may bring a 14B motion to place an enforcement motion before me on three days’ notice to the other party. I will thereafter determine whether the enforcement issue can be addressed through the 14B motion or whether it is to be placed on my list for oral argument.

d. Each party to forthwith notify the other as to when they have been vaccinated against COVID.

e. The motions of the Respondent for makeup access, a restraining order and police assistance are dismissed.

[46] The major issue argued in this motion was the Applicant’s motion to restrict contact which was dismissed, and I have already commented on the Applicant’s unreasonable litigation conduct. Because of his success and the Applicant’s litigation conduct, the Respondent shall have his costs of this motion. If the parties cannot agree on the amount of costs, they may make submissions as to the quantum of costs on a ten-day turnaround, with the Respondent making submissions first and then the Applicant. Submissions to be no more than three pages in length not including Bills of Costs or Offers to Settle, and to be made through the judicial assistant.

McDermot J. Date: March 15, 2021

Footnotes

[^1]: Affidavit of the Applicant sworn January 11, 2021, para. 8 [^2]: O. Reg. 114/99 [^3]: Affidavit of Applicant sworn January 11, 2021, para. 14. [^4]: Along with Jacqueline Indndovino. [^5]: Affidavit of the Applicant sworn January 11, 2021, para. 8. [^6]: Although the Applicant’s affidavit sworn February 20, 2021 is not a reply affidavit as the Respondent has entered new evidence in that affidavit and the Respondent had a countermotion, allowing him to file the last affidavit. However, that affidavit was filed as a “reply” affidavit. [^7]: https://en.wikipedia.org/wiki/List_of_cognitive_biases [^8]: R.S.O. 1990, c. F.3