Court File and Parties
Court File No.: FC-20-517 Date: 2021-03-22 Superior Court of Justice - Ontario
Re: M. M., Applicant And: L. O., Respondent
Before: D.A. Broad
Counsel: Shuchanna Swaby, for the Applicant Raymond Wrubel, for the Respondent
Heard: March 10, 2021
Endorsement
Background
1The parties commenced cohabiting in March, 2011 and separated in December, 2018. They have one child together H.M. age 9, born [date omitted] (the “child”).
2The child has been diagnosed with a medical condition which requires that he have a specific diet and that care be taken in preparing his meals. The evidence suggests that he is not at any higher rate than the general population in contracting COVID-19. By agreement of the parties the child is attending school remotely during the current academic year.
3The applicant has Crohn’s disease and is therefore immunocompromised, placing him at a greater risk of contracting COVID-19 and, should he contract COVID-19, at risk of serious medical ramifications including a Crohn’s disease flare. Although the parties agree that the applicant is at greater risk of contracting COVID-19 than the general population, they do not agree on whether that risk would be considered high or moderate.
4The parties and entered into a Separation Agreement on May 11, 2020 (the “Separation Agreement”) early in the COVID-19 pandemic. The Separation Agreement provided, inter alia, for the following:
(a) parties to have joint custody of the child;
(b) the child to reside primarily with the respondent;
(c) the child to reside secondarily with the applicant on three out of four weekends; and
(d) a detailed schedule for the child to spend holidays, other special days and vacation with each party.
5After reciting the residency schedule referred to above, para. 16 of the Separation Agreement provided as follows:
16 (a) the foregoing residency schedule will commence after the COVOD-19 pandemic has been resolved and any social distancing or social isolation protocols have been terminated for Ontario.
(b) until such time, [the child] will reside as follows:
[the child] will alternate his residence, being with [the applicant] for two weeks and then with [the respondent] for two weeks until the regular schedule is resumed.
(c) [the respondent] shall not work outside her residence while [the child] is residing with her.
6The applicant is a music teacher and is able to continue working from home. He resides with his partner and his partner’s father at the latter’s residence in St. Mary’s Ontario. The applicant’s partner and her father are also immunocompromised.
7The respondent works as a developmental service worker for one employer at three group homes for developmentally challenged individuals. She resides on her own in Kitchener, Ontario.
8When the pandemic began in March 2020 the applicant withheld the child from the respondent for six weeks. The Separation Agreement was negotiated and executed prior to the applicant returning the child to the respondent’s care. The respondent agreed to the applicant’s stipulations of alternating two weeks of care during the pandemic and to not work while the child was in her care. The parties each deposed in their respective affidavits that they did not expect the pandemic to last as long as it has.
9As the pandemic continued, the respondent was required to increase her work hours to support herself and the child and resumed working when the child was in her care around Thanksgiving, 2020. She arranged for her best friend Dave Bell to provide daycare for the child when she was working while he was in her care. Mr. Bell is also immunocompromised and also looks after his niece.
10When the applicant learned that the respondent had begun to work while the child was in her care and had arranged for the child to be cared for by Mr. Bell, a dispute between the parties ensued. The applicant had the child undergo bi-weekly asymptomatic COVID-19 tests. The respondent took the position that she had taken appropriate precautions to prevent the contraction of COVID-19 by herself and the child and that strict protocols are followed at her places of work, including adhering to all public health guidelines.
11The parties engaged in a mediation process through the London Family Court Clinic in London Ontario during October and November, 2020. The applicant claimed that the respondent was not responsive to his requests for information including Mr. Bell’s contact information and her work schedule.
12On December 4, 2020 the applicant took the position that he could not tolerate what he perceived to be the threat to himself and the members of his household of contracting COVID-19 by means of the child’s exposure to the respondent, to Mr. Bell and/or Mr. Bell’s niece and other children with whom the child was allowed to play and refused to return the child to the respondent. On December 10, 2020 he commenced this proceeding by issuance of an Application claiming numerous heads of relief including, inter alia:
(a) an order for final joint custody of the child;
(b) an order that the applicant have final decision-making authority over all important decisions affecting the child;
(c) an order that the parties share custody of the child on a 50/50 basis;
(d) in the alternative, an order that the respondent have specified parenting time with the child;
(e) an order that the primary residence of the child be with the applicant;
(f) in the further alternative, an order that the court make a parenting order and/or an interim parenting order in favour of the applicant; and
(g) detailed “COVID terms” including an order that until the pandemic has ended, the child shall not be exposed to any third parties outside of his immediate households without the express written consent of the applicant
13On December 10, 2020 the applicant filed a motion for various relief on an interim without prejudice basis, including the following:
(a) an order that both parties adhere to the Separation Agreement;
(b) in the alternative, should the respondent be unable or unwilling to care for the child, the applicant shall have the child in his care;
(c) in the further alternative, that the applicant shall have primary residence of the child;
(d) appointment of the Office of the Children’s Lawyer with a clinical assist;
(e) that the parties choose one of the child psychologists recommended for the child by the Assistant Executive Director of the London Family Court Clinic; and
(f) that the respondent provide her work schedule to the applicant;
14The applicant brought an accompanying motion, without notice to the respondent, seeking leave to bring the motion referred to above prior to a case conference on terms. By Endorsement dated December 15, 2020 Gordon, J. ordered that, given that the parties had met as recently as December 8, 2020 with lawyers to discuss the issues, it was not appropriate to proceed on a without-notice basis and directed that the motion and supporting material be served on the respondent in the usual manner.
15The applicant filed her Answer on December 21, 2020 in which she disputed the applicant’s claims and sought the following relief:
(a) an order setting aside paragraphs 12 and 16 of the Separation Agreement;
(b) an order in accordance with the Separation Agreement save and except the paragraphs requested to be changed by her;
(c) an interim and permanent order that the respondent have sole custody of the child;
(d) an order that the respondent be allowed to work during the pandemic when the child is in her care and that she can choose the childcare that the child will attend when she is working; and
(e) a police assistance clause to ensure her periods of care.
16On December 21, 2020 the respondent brought a motion seeking the following relief:
(a) an order that the child be returned to her forthwith and that she have periods of care with the child in accordance with Separation Agreement until further order of the court;
(b) an order for police enforcement in accordance with section 36 of the Children’s Law Reform Act;
(c) an order deleting paragraph 16(c) of the Separation Agreement thereby allowing the respondent to work when the child is residing with her;
(d) an order that the child not be required to attend for a COVID-19 tests unless he is exhibiting symptoms of COVID-19 and both parties agree in writing that he should be tested;
(e) an order that the motion be heard prior to a case conference pursuant to sub-rule 14(4.2) of the Family Law Rules.
17The applicant filed an Amended Notice of Motion on December 23, 2020 advancing claims for the following additional relief:
(a) an order that the respondent shall not work outside of the home while the child is in her care and she shall not leave the child in the care of any third-party caregiver; and
(b) an order that the applicant may have the child tested for COVID-19 once every two weeks to ensure the child is negative for the coronavirus (Covid-19).
18The applicant filed a Further Amended Notice of Motion, also dated December 23, 2020, in which he advanced, in addition to a claim for leave to amend his Application, eleven additional claims for relief as follows:
(a) that the parties shall attend and participate fully in the London Family Court Clinic Program as soon as possible and follow their recommendations;
(b) that the child be enrolled in the London Family Court Clinic Program for counselling and/or therapy;
(c) in the alternative, an order dispensing with the consent of the respondent for any decisions involving the child’s health and medical care;
(d) that the respondent shall do COVID-19 testing if she is eligible to do so on a regular basis and shall provide the applicant with the official results within 24 hours of receiving the results;
(e) that the respondent shall provide a copy of her work schedule on a bi-weekly basis to the applicant and work together to establish a schedule;
(f) that the respondent shall have a COVID-19 test prior to the child being returned into her care;
(g) that the respondent shall take the child to Huron-Perth Healthcare Alliance in Stratford, Ontario for a COVID-19 test prior to dropping the child off at 5 PM at the home of the applicant;
(h) that the parties shall strictly adhere to all COVID-19 protocols of the Federal, Provincial and Municipal governments and shall ensure that the child also is in compliance;
(i) that the respondent shall not leave the child in the care of any third-party babysitter or allow the child to play with other children at any time while the child is in her care;
(j) that neither party shall discuss the current court proceedings with the child or disparage the other parent to her in the presence of the child; and
(k) should the respondent breach any terms of a court order or the Separation Agreement and/or not strictly adhere to all COVID-19 protocols and COVID-19 testing, the applicant shall be at liberty to bring an urgent motion for sole custody and seek any reasonable costs thereof at any time.
19The applicant refused to return the child to the respondent for approximately 2 ½ months. Just prior to the first return date of the within motions on February 17, 2021 the parties agreed that the child shall be returned to the respondent’s care on the basis that until August, 2021 he would reside alternately with the respondent for three weeks followed by two weeks with the applicant in order to afford makeup time to the respondent, following which the parties would return to the two week rotation.
20On February 17, 2021 Justice MacNeil directed that the motions be placed on the long motions list for argument and that the parties file Facta. She reserved the costs of the appearance before her to the judge determining the motion.
21On the return of the motion before me, the parties sought the following relief prior to a case conference, respectively:
(a) By the Applicant:
i. an order that the applicant may take the child to have a COVID-19 test at his discretion;
ii. an order that the child shall attend counselling at the London Family Court Clinic in London, Ontario forthwith;
iii. in the alternative, an order that the parties shall ensure continued attendance and individual counselling for the child;
iv. an order that the parties shall attend the London Family Court Clinic to resume discussions on custody and parenting issues forthwith;
v. an order that the parties comply with the Separation Agreement;
vi. an order for the involvement of the Office of the Children’s Lawyer; and
vii. that the balance of the motions before the court shall be adjourned to a date to be determined by the Trial Coordinator.
(b) By the Respondent:
i. an order that the child shall not be tested for COVID-19 unless exhibiting symptoms of COVID-19 in accordance with standard government protocols for Ontario;
ii. an order that the respondent be allowed to work during the pandemic when the child is in her care and that she can choose the child-care that the child will attend when she is working;
iii. an order that the applicant’s request for relief in his various notices of motion shall be adjourned to a date to be set in cooperation with the Trial Coordinator after a case conference has been held.
22The applicant did not pursue in submissions his claims for an order initializing the names of the parties and the child in the proceeding and that the video evidence provided by the applicant to the court may be admitted into evidence.
Principles Governing Motions Prior to a Case Conference
23Sub-rule 14(4) of the Family Law Rules provides that no motions may be heard before a case conference. Sub-rule 14(4.2) provides that, as an exception to sub-rule 14(4), a motion may proceed before a case conference if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
24In the seminal case of Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (S.C.J.) Wildman, J. adopted the observation expressed by Belch, J. in Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J.) that urgency, justifying a motion before a case conference, contemplates issues such as abduction, threats of harm or dire financial circumstances.
25The rationale for the rules discouraging the parties from bringing motions at the outset of a case and prior to a case conference was outlined by Wildman, J. in Rosen at para. 2 as follows:
generally motions are now discouraged as the opening step in a family law file. The philosophy of the Family Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge. There is a deliberate attempt to try to avoid the damage that flows from the "nasty affidavit war" that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.
26Doyle J. reinforced this explanation of the philosophy of the Family Law Rules in Yelle v. Scorobruh, 2016 ONSC 3300 (S.C.J.) at para. 48 as follows:
Certainly, the focus of early resolution of matters starts with a meaningful case conference in accordance with Rule 17(4). At the case conference, a Court explores the chances of settling the case, explores ways to resolve issues, deals with outstanding disclosure issues, identify issues in dispute and discusses next steps. The case conference is integral to a family law case as it is the first event attended by the parties and is completed in a less adversarial fashion than a motion. A motion requires affidavit evidence that can be very antagonistic and aggressive, which can drive a deeper wedge between the parties and hurt settlement prospects. The FLRs were designed to ensure that parties attend the case conference. Only if there are instances of "urgency" or "hardship" should a Court consider permitting the parties to first attend a motion.
27Wildman, J. noted in Rosen that, as a first step, a moving party should make an inquiry as to when case conference dates are available to deal with the matter. The timing and availability of a case conference date are factors in determining whether a matter is urgent (see also Yelle v. Scorobruh at para. 34).
28As the next step, the parties should engage in settlement discussions to attempt to resolve pressing matters until the case conference date.
Is the applicant’s for an order motion that the child receive counselling at the London Family Court Clinic urgent?
29In the recent case of Muncan v. Muncan, 2021 ONSC 82 (S.C.J.), Piccoli, J. made reference at paras. 69-70 to the decision of Audet, J. in Leelaratna v. Leelaratna, 2018 ONSC 5983 (Ont. S.C.J.), in which she reviewed the law with respect to the court's jurisdiction to order counselling and when, if the court has jurisdiction, counselling should be ordered.
30Borrowing from the factors highlighted by Jarvis J. in Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226 (Ont. S.C.J.), Audet J. found in Leelaratna at para. 69 that the following factors are relevant to a judge's discretion to make a therapeutic order:
(a) is the cause for the family dysfunction (whether alienation alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?
(b) is there compelling evidence that counselling or therapy would be beneficial to the child?
(c) at what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?
(d) are the parents likely to meaningfully engage in counselling despite their initial resistance to making of the order? Will a strong judicial "recommendation" compel participation and cooperation by the recalcitrant parent?
(e) is the child likely to voluntarily engage in counselling therapy.
31At para. 71 of Muncan Piccoli, J. noted further that
despite recognizing the court's jurisdiction to make therapeutic orders, Audet J. observes that s.10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A ("HCCA"), provides that treatment cannot be administered to a person without their consent. However, the application of the HCCA is circumscribed to situations where the therapeutic order sought falls within the definition "treatment" and the person administering it is a "health practitioner" as defined by the HCCA.
32The applicant deposed that, on the recommendation of their respective lawyers, the parties attended the London Family Court Clinic to participate in a program which seeks to assist parties to reach agreement on parenting issues. The child was interviewed as part of the program and was able to provide his views and preferences. The applicant stated that the issue of therapy for the child was raised and the parties were given the names of six specialists from the London hospital for that purpose. He stated that the respondent felt that London was too far to drive for appointments and is seeking that other choices be explored closer to her home in Kitchener. He stated that the child currently has a therapist Dr. Brandon Spurnar, but he is not experienced in dealing with high conflict family breakdown. The applicant alleged that the respondent would constantly speak with the therapist to try to influence him about his approach with the child and suggested that the respondent would question the child about his therapy sessions.
33For her part the respondent deposed that it was she who first suggested that the child be looked at by a child psychologist. The parties participated in the London Family Court clinic during the months of October and November, 2020. She stated that she is not against the child seeing a child psychologist, but she is against the child seeing one from London as it would be very onerous for her. She has requested a referral to child psychologist in the Region of Waterloo or even midway between the applicant’s and her places of residence and does not believe that this is an unreasonable request.
34Applying the factors identified by Audet J. in Leelaratna, I find that the nature of the therapy proposed is not clear on the evidence nor is it clear what the goals and purposes of counselling are and how it would be beneficial to the child. An order for counselling is being sought by the applicant at the earliest possible stage of the proceeding, before a case conference, and not on a full evidentiary record. Importantly, although the parties are generally in agreement that the child should receive counselling, they are not in agreement on the identity of or the location of the proposed counsellor. This suggests that, should the court order counselling with a particular counsellor, there is a risk that the party opposed to that choice may not meaningfully engage in the process. The evidence suggests that each party distrusts the other’s motives for making their respective proposals for counselling. There is also no evidence on whether the child is likely to voluntarily engage in counselling therapy.
35In my view the motion for an order requiring the child to engage in counselling is not urgent and is premature. There is a marked difference between the parties mutually agreeing that the child receive counselling and on the choice of counsellor and the court imposing it against the wishes of one of the parents. It would be preferable that the counselling issue be explored within the less antagonistic atmosphere of a case conference, when the parties may engage in a more dispassionate consideration of the best interests of the child, with the assistance of their counsel and a case conference judge.
Is the applicant’s motion for an order that the parties engage in mediation at the London Family Court Clinic urgent?
36The applicant points to the coming into force on March 1, 2021 of subsection 33.1(3) of the Children’s Law Reform Act, R.S.O 1990, c. C. 12 (the “CLRA”) as imposing on the parties a duty to engage in mediation and submits that it confers on the court jurisdiction to order the parties to do so. That subsection provides as follows:
(3) To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law.
37Subsection 33.1(3) comprises part of a list of duties imposed on the parties to a dispute under Part III of the CLRA at subsections (1) through (5).
38Ms. Swaby submits on behalf of the applicant that the London Family Court Clinic has at its disposal specialists, including medical specialists, who are trained and equipped to assist parties in conflict in relation to COVID-19 protocols and guideline compliance, and that it would be beneficial for the parties to utilize its services as it would likely result in a resolution of the issues between them.
39Mr. Wrubel for the respondent points out that the parties attended sessions at the London Family Court Clinic in October and November 2020 which did not result in a resolution of the issues between them. He disputes that the Court has jurisdiction to order the parties to engage in mediation and submits that in any event it is not an urgent matter to be dealt with prior to a case conference.
40It is noteworthy that section 33.1 does not expressly confer on the court jurisdiction to order parties to engage in mediation. Subsection (3) places a duty on the parties to “try” to resolve matters that may be the subject of an order under Part III through an alternative dispute resolution process “such as” negotiation, mediation or collaborative law, but only “to the extent that it is appropriate to do so.”
41The manner in which the duty to try to settle disputes through alternative dispute processes is given practical effect is by means of subsection (6) which requires each of the parties to certify in a document that commences a proceeding under Part III of the CLRA or which responds to such a document that the party is aware of the duties set forth in subsections (1) to (5).
42It is noted that section 31(1) of the CLRA provides that “upon an application for custody of or access to a child, the court, at the request of the parties, by order may appoint a person selected by the parties to mediate any matters specified in the order.” (emphasis added). Section 31 was unaffected by the amendments to the CLRA that came into force on March 1, 2021.
43Although it is not necessary to decide the issue as I find that the motion for an order directing the parties to engage in mediation is not urgent, I see no basis for the suggestion that the enactment of section 33.1 conferred new jurisdiction on the court to order mediation where the parties have not jointly requested it as contemplated in section 31.
44In my view the applicant’s motion for an order that the parties engage in mediation through the London Family Court Clinic is not urgent for the purposes of sub-rule 14(4.2) of the Family Law Rules as interpreted in Hood v Hood and Rosen v. Rosen and subsequent jurisprudence.
Is the applicant’s motion for an order requesting the involvement of the Office of the Children’s Lawyer urgent?
45The applicant submits that it would be appropriate to request the involvement of the OCL in order to permit the child to effectively express his views and preferences, and it would be convenient and expeditious to do so now given the delay involved in obtaining a response from the OCL on whether it will become involved and, if so, to permit it to carry out its tasks.
46The respondent is opposed to the involvement of the OCL, pointing out that the Separation Agreement was negotiated and put in place by the parties as recently as May, 2020 by which the parties agreed to joint custody and for primary residence of the child with her. Her position is that the involvement of the OCL is not necessary, but, in any event, the motion seeking OCL involvement is not urgent.
47At para. 66 of Yelle v. Scorobruh Doyle, J. stated that even though the parties had agreed to the involvement of the OCL, the court is not prepared to order its involvement in a perfunctory manner without exploring the reasons and bases for the involvement. Doyle, J. went on to make the following observations at para. 67:
The OCL is funded through public funds and does not have resources to service all matters. The parties should, with the guidance of the Court, determine what role the OCL would play, whether the best interests of the child dictate a request that the OCL be involved and whether there are other options available to obtain third party evidence or expert evidence of the child's best interests. For example, the Court could also determine whether a child needs legal representation under s. 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 [CJA], or whether there should be a social work report under s. 112 of CJA. The Court does not rubber stamp the parties' consent to request the involvement of the OCL without the matters having been discussed in a case conference, unless there is a pressing issue that requires the OCL's immediate attention.
48I would elaborate upon Justice Doyle’s helpful observations by noting that involvement of the OCL in the life of the child, whether by means of the provision of legal representation alone or with clinical assistance of the social worker, can be potentially intrusive and stressful for the child, particularly when there are other stressors at play and other professionals involved in his life.
49In my view the issue of OCL involvement is better explored at a case conference along with other issues such as counselling for the child as part of an overall consideration of the child’s best interests. I find that the applicant’s motion for involvement of the OCL is not urgent as contemplated by sub-rule 14(4.2).
Compliance with the Separation Agreement
50As indicated above, the applicant has sought an order that the parties comply with the Separation Agreement. In submissions Ms. Swaby advised that the applicant seeks enforcement of two specific provisions of the separation agreement on an urgent basis prior to a case conference. These are 1) para. 16(c) requiring the respondent to not work outside her residence while [the child] is residing with her and 2) para. 24 which provides as follows:
- [The respondent] and the [applicant] may make inquiries and be given information by [the child’s] teachers, school officials, doctors, dentists, health care providers, summer camp counsellors and others involved with [the child]. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access.
(a) Information from childcare provider
51With respect to para. 24, the applicant seeks contact information respecting Mr. Bell, who provides childcare for the child at the request of the respondent, and the right to make inquiries and be given information by him.
52In my view, the applicant has not demonstrated that his ability to make inquiries and be given information by Mr. Bell is urgent within the meaning of sub-rule 14(4.2). Specifically, he has not satisfied the onus on him of showing that there is a “threat of harm” represented by Mr. Bell providing childcare for the child.
53In the oft-cited case of Ribeiro v. Wright, 2020 ONSC 1829 Pazaratz, J. offered the following useful guidance at para. 21 to parents and to judges in dealing with urgent motions respecting compliance with COVID-19 protocols and directives in relation to the best interests of children:
We will deal with COVID-19 parenting issues on a case-by-case basis.
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b. The parent responding to such an urgent 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.
c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
54In his affidavit of December 10, 2020 the applicant deposed as follows:
“I have asked [the respondent] for the details of [Mr. Bell’s] contact information as well as her work schedule and she has repeatedly refused to provide them to me. If I return [the child] to [the respondent’s] care, [the respondent] will place [the child] in [Mr. Bell’s] or another stranger’s care and this will increase my chances of getting COVID-19 if [the child] contracts the virus and this can lead to my death as well as those in my household.”
55In her responding affidavit of December 21, 2020, the respondent deposed as follows:
“the current government protocols do not prohibit children from attending daycare. I do not feel that I should be required to provide any address or contact information of [Mr. Bell] to the applicant. [The child] is in my care when I use Mr. Bell for childcare… I know that if I provide the applicant with any of Mr. Bell’s information, he will use that information to hound Mr. Bell, as he has done with some of my other friends and contacts in the past.
I adhere to the same protocols in my home as does the applicant in his. When [the child] is in childcare he also follows the same protocols.”
56The applicant has produced three letters from medical practitioners - one dated August 17, 2020 from Dr. Huyen Pham and two letters from Dr. Jordan Golubov dated October 26 and November 22, 2020 respectively.
57In his letter Dr. Pham stated that the medication that the applicant uses renders him immune compromised, and as such, he is at greater risk of infection and more serious complications when compared to the general population due to his therapy.
58In his letter of October 26, 2020 Dr. Golubov stated that the respondent should ensure that he minimizes his risk of being exposed to the SARS-CoV-2 virus, to whatever extent possible and that all steps that can be taken to ensure this would be in his best interest. In his letter of November 22, 2020 Dr. Golubov elaborated by stating that the respondent must practice physical distancing measures and not come into contact with anyone who carries the virus or who is ill from it and that avoiding exposure to individuals working in high-risk environments would be of most importance to the respondent and his health. He went on to state that anyone who has been exposed to COVID-19 should be tested before coming into contact with the respondent, but even that is not a guarantee as one-time tests can then be followed by positive tests and illness. Testing is just one way of minimizing his risk.
59Neither medical practitioner made specific recommendations with respect to additional precautions to be implemented in relation to the child, and specifically with respect to childcare over and above the protocols and directives of public health authorities.
60I do not find the approach taken by the respondent with respect to childcare for the child to be unreasonable so as to place the child, and by extension the applicant, at undue risk of contracting COVID-19. The applicant has not provided specific evidence of behaviour or plans by the respondent which are inconsistent with COVID-19 protocols that would justify an order on an urgent basis that the respondent provide the applicant with the contact information for Mr. Bell.
(b) The respondent working while the child is in her care
61The parties both agree that the issue of the respondent’s obligations under para. 16(c) of the Separation Agreement, and specifically whether she should be permitted to work while the child is in her care, is urgent for the purposes of sub-rule 14(4.2). I agree that this issue is urgent as it concerns dire financial circumstances affecting the respondent.
62As noted above, both parties deposed in their respective affidavits that, at the time that the Separation Agreement was entered into, they did not expect the COVID-19 pandemic to last as long as it has. It is evident from this that the parties’ mutual intention was that the restriction on the respondent’s ability to work while the child is in her care would be of limited duration.
63Moreover, there is uncertainty and potential ambiguity in the provision of the Separation Agreement providing for the termination of the restriction on the ability of the respondent to work. Para. 16(a) provides that the regular residency schedule will commence “after the COVID-19 pandemic has been resolved and any social distancing or social isolation protocols have been terminated for Ontario.” The paragraph provides no objective measure or mechanism by which it will be determined that the “COVID-19 pandemic has been resolved.”
64Sub-paragraph 56((4)(c) of the Family Law Act. R.S.O. 1990, c. F.3 provides that a court may, on application, set aside a domestic contract or a provision in it in accordance with the law of contract.
65The respondent submits that para. 16(c) should be set aside on the ground of unconscionability. The provision restricts the respondent’s ability to earn an income to support herself and the child as she is an essential front-line worker who is not, unlike the applicant, in a position to earn an income working from home. In her affidavit of December 21, 2020, she deposed “I live on my own. I need to work as I have no other supports. The applicant resides rent-free with his fiancée and her father. Also, the applicant is able to work from home and earn income while I am not.” In my view it is in the child’s best interests that the respondent be permitted to work so that she may maintain shelter and provide other necessities.
66It is noteworthy that in submissions Ms. Swaby for the applicant acknowledged that the applicant does not seek an indefinite restriction on the ability of the respondent to work while the child is in her care, but rather only until a mediation can be conducted through the London Family Court Clinic. As indicated above, the parties will not be ordered to engage in mediation.
67It is not appropriate to make a final disposition with respect to the enforceability of para. 16(c) of the Separation Agreement, which is a matter for trial or summary judgment. However, in my view, it is appropriate and necessary to relieve the respondent, on a temporary without prejudice basis, from compliance with para. 16(c) to permit her to work to support herself and the child.
Asymptomatic COVID-19 testing for the child
68I am satisfied that the applicant’s motion that he be permitted to have the child tested for COVID-19 on an asymptomatic basis in his discretion is urgent for the purposes of subrule 14(4.2) as a relates to a risk of harm, particularly to the applicant himself.
69As indicated above, the applicant has presented medical evidence that he is immunosuppressed and that should he be infected with COVID-19 it could result in interruption of his therapy leading to potentially serious ramifications for him. Dr. Golubov stated that anyone who is been exposed to COVID-19 should be tested before coming into contact with the applicant, as a way of minimizing his risk.
70In her affidavit of December 21, 2020 the respondent stated that she was strongly opposed to the applicant forcing the child to have a test every time he comes back to the applicant’s house after two weeks with her. She stated that the child “hates” undergoing the tests and she believes that it is a form of parental abuse for the applicant to continue to insist on the test despite her protests. She stated further that the child has told her and the applicant in the past that he would rather kill himself than be forced to take another COVID test as his father demands.
71In his reply affidavit of December 24, 2020 the applicant stated that, without a test, he could contract the virus from the child and he could die. He stated that the child is not suicidal regarding taking COVID testing and he has explained to the child in a child-focused way why the tests have to be done and that the testing will not be forever. He now tests the child upon his arrival and has started taking COVID tests himself with the child at the respondent’s insistence. He stated that the child is understanding and knows that the testing is to keep himself and everyone safe.
72In my view, admitting the competing evidence of the parties respecting statements by the child concerning his reaction to COVID testing is problematic. Even if this evidence may not technically be hearsay on the basis that it is introduced not for the truth of the statements but for the fact that the child made them, parties quoting their children to support their respective positions is nevertheless fraught with difficulty and the evidence must be viewed with caution by the court due to its inherent unreliability. I place very little weight on this evidence.
73Useful instruction that may be applied to this case can be gleaned from the decision of A.J. Himel, J. in the case of J.N. v. A.S., 2020 ONSC 5292 (S.C.J.) which dealt, in part, with the question of whether the child in that case should attend in-person schooling during the pandemic.
74At para. 47 Himel, J. observed as follows:
It is helpful to consider the evidentiary basis to suspend a person's face-to-face contact during Covid-19 due to a child's medical vulnerability and apply that lens to the in-person versus online dispute. That issue, like school attendance, requires a balancing of competing interests. Both decisions have a significant impact on the child. The evidentiary requirement for suspending access is described in C.L.B. v. A.J.N., 2020 ONCJ 213 (Ont. C.J.) at paragraph 31, per Sherr, J.:
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.
75At para. 50, Himel, J. offered the following guidance with respect to the medical evidence which should be tendered where it is asserted that a child’s attendance for in-person schooling will place him/her or member of the household at a risk of harm:
A party claiming that school attendance presents an unacceptable risk should provide a medical report that the child's attendance in-person will place him/her or a member of household at an unacceptable risk of harm, including:
(a) a diagnosis for the vulnerable person;
(b) a prognosis for the vulnerable person if he/she catches Covid-19 (if the medical practitioner can provide same);
(c) any available treatment that is relevant to the prevention and/or treatment if the vulnerable person falls ill with Covid-19; and,
(d) whether there are any precautions that can be put in place to enable the child to attend in-person school without placing the vulnerable person at an unacceptable risk of harm.
76In my view similar considerations apply to the case at bar.
77The applicant has presented medical evidence supporting recommended precautions to reduce his risk of contracting COVID-19 which would include having anyone who is been exposed to COVID-19 undergo testing before coming into contact with him as a way of minimizing his risk.
78In my view the court can take judicial notice of the following factors:
(a) COVID-19 infection can be transmitted by an infected person who is completely asymptomatic;
(b) it is not unusual for a child to be infected with COVID-19 while remaining asymptomatic;
(c) testing is the only means of determining whether a person, in particular an asymptomatic child, is infected with COVID-19 and thereby poses a risk of transmitting the virus to others.
(d) public health authorities and school boards have been conducting and continue to conduct routine testing of asymptomatic schoolchildren in selected schools as an additional public health measure to limit the spread of COVID-19 in the community.
79In the case of L.B. v. P.E., 2021 ONCJ 114 (O.C.J.) Sherr, J. stated at para. 43(e)1 that “a starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in the child’s best interests when making an access order that his or her caregiver be physically and emotionally safe.”
80I find that it is in the child’s best interests in the case at bar that the applicant be physically and emotionally safe.
81The determination of the frequency of asymptomatic COVID-19 testing for the child involves a balancing of competing interests – namely a need to avoid overly intrusive testing of the child and the need to afford reasonable protection of the applicant’s health and well-being.
82In my view it is appropriate and in the child’s best interests, on a temporary without prejudice basis, that the applicant be authorized to have the child tested for COVID-19 upon the child’s return to his care from the respondent’s care, without the consent of the respondent, unless the child’s physician has recommended in writing against such testing. It is also appropriate, also on a temporary without prejudice basis to permit each party to have the child undergo additional COVID-19 tests, without the consent of the other party, if recommended or directed by the child’s physician or in accordance with public health protocols and directives or if the child is exhibiting symptoms of COVID-19 in accordance with standard government protocols for Ontario. In my view it would be overly intrusive for the child and not required for the reasonable protection of the applicant to permit the administration of more frequent asymptomatic COVID-19 tests on the child in the discretion of the applicant and without the consent of the respondent or the recommendation or direction of the child’s physician or public health authorities.
Disposition
83For the foregoing reasons it is ordered as follows:
(a) on a temporary, without prejudice, basis the respondent is relieved from compliance with paragraph 16(c) of the Separation Agreement between the parties dated May 11, 2020 such that she shall be entitled to work outside her residence while the child H.M. is residing with her;
(b) on a temporary, without prejudice, basis the applicant shall be authorized to have the child H.M. tested for COVID-19 upon the return of the child to his care from the respondent’s care, without the consent of the respondent, unless the child’s physician has recommended in writing against such testing;
(c) on a temporary without prejudice basis each party shall be permitted to have the child undergo additional COVID-19 testing, without the consent of the other party, if such testing is recommended or directed by the child’s physician or is in accordance with public health protocols and directives or if the child is exhibiting symptoms of COVID-19 in accordance with standard government protocols for Ontario; and
(d) the balance of the claims for relief in the parties’ respective notices of motion shall be adjourned to a date to be set by the Trial Coordinator following a case conference in the proceeding.
Costs
84The parties are strongly urged to settle the issue of the costs of the motions.
85If the parties are unable to do so, the respondent may make written submissions as to the costs of the motions, including the appearance before MacNeil J. on February 17, 2021, within 14 days of the release of this Endorsement. The applicant has 10 days after receipt of the respondent’s submissions to respond. The respondent may deliver reply submissions 5 days after receipt of the applicant’s submissions. The initial written submissions shall not exceed five (5) double-spaced pages exclusive of Bills of Costs or Costs Outlines, offers to settle and authorities. The reply submissions, if any, shall not exceed three (3) double-spaced pages All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford at the same email address as utilized for the release of this Endorsement.
86If the parties are able to settle the question of costs or if a party will not be delivering submissions or reply submissions, counsel are requested to advise the court accordingly.
D.A. Broad
Date: March 22, 2021