COURT FILE NO.: FC-20-98
DATE: 2021/01/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA CAITLIN HOLLIDAY
Applicant
– and –
MICHAEL JAMES BEATTIE
Respondent
Joan Rothwell, for the Applicant
Sandra Jones, for the Respondent
HEARD: December 7, 16 and 17, 2020 by Zoom
RULING ON MOTION
Introduction
[1] The parties are the parents of Isabelle Jasmin Marie Holliday-Beattie (DOB: […], 2012) and Grayson Kael Holliday (DOB: […], 2013), (“the Children”). The parties separated for a second and final time in January 2020. Since the final separation, the Children have been living primarily with their mother at the maternal grandparents’ home.
[2] The father did not see the Children from the date of separation until early April 2020. At that time, the Children began to have virtual access visits with their father. It was not until after a July 2020 case conference that the Children began to see the father for in-person access visits.
[3] On the consent of the parties, a temporary, without prejudice order was made at the case conference (“the Order”). The Order remains in effect; it provides that the Children shall have in-person access visits with their father every second Saturday, commencing on July 18, 2020, from 1:00 p.m. to 5:00 p.m. The first visit was to take place outdoors. Thereafter, the visits were to take place at the paternal grandparents’ home. The visits are supervised by the paternal grandmother, Jean Beattie. She is present for pick-up, transportation, and drop-off.
[4] The father brings this motion for (a) an increase in the duration of the access visits, (b) removal of the supervision requirement, and (c) access visits during the Christmas to New Year holiday period.
[5] The motion was originally returned on December 7, 2020. On that date, the parties consented to an order increasing the duration of the access visits and providing for visits on the following terms:
• On Saturday, December 19, 2020 from 10:00 a.m. to 7:00 p.m.; and
• Subject to further order of the court,
a) on January 2, 2021 from 10:00 a.m. to 6:00 p.m.;
b) on January 16, 2021 from 10:00 a.m. to 6:00 p.m.;
c) from 10:00 a.m. on Saturday, January 30, 2021 to 4:00 p.m. on Sunday, January 31, 2021; and
d) every second weekend thereafter from 10:00 a.m. on Saturday to 4:00 p.m. on Sunday.
[6] The parties also agreed that the access visits on December 19, 2020 and January 2, 2021 would be supervised. The father’s requests for an access visit at Christmas time and the elimination of supervision were adjourned to December 16, 2020.
[7] Immediately prior to the return of the motion on December 7, 2020, the mother raised, for the first time, that her family planned to have her brother, Alex, spend time at the family home for a number of days during the Christmas to New Year holiday period. Alex is described as being on the autism spectrum. He resides in a supported living facility (“the Ranch”). The mother and her family have not seen Alex since March 2020, because of COVID-19.
[8] As of December 7, 2020, neither party had sufficient time to marshal evidence to address the Holliday family plans with Alex. The issue of the impact, if any, of those plans on the access visits during the holiday period, including on January 2, 2021, was adjourned. A timetable was agreed upon for the delivery of materials on that issue. The timetable was tight, with the balance of the motion adjourned to December 16, 2020.
[9] The parties and their respective counsel worked diligently and complied with the timetable. Despite the parties and their counsel having done so, the materials electronically filed were not available to the court on December 16, 2020. It was not possible to proceed with the balance of the motion on that date.
[10] The balance of the motion was adjourned to December 17, 2020. To ensure that the court had all of the relevant materials, the materials most recently filed were sent to the court via email.
[11] By December 16, 2020, the parties had, however, agreed that the Children would have an in-person access visit with their father on December 24, 2020 from 10:00 a.m. to 6:00 p.m. The visit was to take place at the paternal grandparents’ home and be supervised by Mrs. Beattie.
[12] With all of the materials in hand, the balance of the motion was heard on December 17, 2020.
The Issues
[13] The issues that remain to be determined are as follows:
What impact, if any, do the Holliday family plans for Alex’s visit have on the access visit scheduled for January 2, 2021?
Which, if any, of the access visits from January 16, 2021 forward shall be supervised by Mrs. Beattie?
[14] On December 22, 2020, counsel for the parties were advised by email of my decision on Issue No. 1 and that written reasons would follow.
Issue No. 1 - What impact, if any, do the Holliday family plans for Alex’s visit have on the access visit scheduled for January 2, 2021?
a) The Positions of the Parties
[15] The father’s position is that the access visit on January 2, 2021 should not be disrupted by the Holliday family plans for Alex; it is in the Children’s best interests that the scheduled access visit occurs. The father submits that the access visit is paramount over Alex’s visit to his family home.
[16] The mother opposes the Children visiting with their father on January 2, 2021. The mother requests that arrangements be made for the Children to have an access visit with their father after January 6, 2021 – the date on which Alex is expected to return to the Ranch.
[17] In opposing the scheduled visit, the mother raises concerns with respect to the protection against COVID-19 for Alex and for individuals with whom he resides at the Ranch. The mother relies on the contents of a December 7, 2020 letter from the Ranch’s Director in which he says the following:
In order for Alex to have a home visit, we require that you put in safety measures that protect Alex while on his visit but, [sic] ensure the safety of individuals upon his return to the Ranch.
We had agreed that when Alex is visiting your home, you and those living in your residence would maintain isolation with the exception of shopping for necessities (food) or obvious needs to leave your home. This would mean having no visitation from outside sources or people inside your home coming and going into the community or visitations with others outside the home as this would [put] Alex and as said others at his existing home at risk of COVID-19.
If you or members of your family living in your home cannot adhere to these guidelines, unfortunately, we would not be able to entertain Alex visiting you and your family over the holidays.
[18] The mother acknowledges that, during Alex’s visit, (a) she will be working outside the family home on a full-time basis, (b) the Children will be attending school in-person for several days, and (c) other family members who do not reside in the maternal grandparents’ home will be visiting the family home.
[19] In reply, the father points out that the mother’s proposed conduct and that of her family members runs contrary to the requirements set out in the letter from the Ranch’s Director. The father submits that, in those circumstances, it is unreasonable for the mother to isolate the Children from their father until Alex returns to the Ranch.
b) Post-Motion COVID-19 Developments
[20] On December 21, 2020, the Ontario Government announced a 28-day lockdown commencing on December 26, 2020 – two days after it was anticipated that Alex would begin his visit at his parents’ home. I take judicial notice of that announcement and of the following terms of the lockdown:
• Social gatherings indoors are restricted to members of the same household;
• Long-term care facilities are permitted to remain open;
• Ontarians are required to stay home to the fullest extent possible; and
• Trips outside the home are to be limited and only for essential purposes.
[21] Prior to making this ruling, the court did not receive any communication from counsel as to the effect of the lockdown on the Holliday family plans for Alex’s visit. The terms of the lockdown and the Ranch’s response to it may be such that Alex was no longer able to visit his parents’ home as planned.
[22] Regardless, a decision on Issue No. 1 is required. The decision may be of assistance to the parties should plans be made in the future for Alex to visit his family home.
c) Analysis
[23] Early in the pandemic, the court established a number of guidelines for access visits. In Ribeiro v. Wright, 2020 ONSC 1829, at paras. 11-14, Pazaratz J. set out the following factors to be considered:
11 In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
12 In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
13 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.
14 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.
[24] Starting with the first factor listed above, there is a presumption that the January 2, 2021 visit should occur. Neither of the second or third factors is relevant to the outcome in this case. Before turning to the fourth factor, which is relevant, it is important to consider how the Holliday family’s plans with Alex were addressed with the father.
[25] The plans were presented to the father as a fait accompli. He was not consulted in any way about the timing of Alex’s home visit and its potential impact on the scheduled access visit. The father was not given the opportunity to plan for the access visit to occur on an alternate date. Planning in that regard is required because Mrs. Beattie arranges her work schedule so as to be available to supervise the visits. The supervision is in place to address the mother’s concerns for the well-being of the children.
[26] COVID-19 has resulted in changes to the types of plans that can be made and to the logistics of making plans. In some cases, such as this one, the logistics require planning well ahead of the intended event and that many people are involved in the planning. Attempting to bring Alex home for the holidays has undoubtedly been a learning curve for the mother and her family members. The Children and the father should not, however, miss the scheduled access visit because of the lack of the requisite planning by the Holliday family.
[27] In summary, the mother is not entitled to unilaterally determine that her plans, or those of her family, will result in the Children missing a scheduled access visit with their father. If any of the mother’s future plans will have an impact on a scheduled access visit, then the father must be consulted before those plans are finalized. Unless the father consents to a proposed change in the access schedule, then either the visit will proceed as scheduled or the mother will need to seek leave to bring a motion on an urgent basis for an order varying the existing access schedule.
[28] For leave to be granted in those circumstances, the mother would have to demonstrate that the matter is of the requisite degree of urgency. She may wish to educate herself in that regard and develop an understanding of circumstances that the court considers urgent. A visit from a family member, planned on short notice and without communication with the father, may not be found to be urgent.
[29] The point is that, with an agreed upon access schedule, both parties must plan ahead, consult with each other, and be reasonably amenable to revisions to the schedule to accommodate unique or unforeseen events. In the COVID-19 era, the emphasis on planning is even greater because of the precautions required and the risks of transmission of the virus.
[30] I return to the factors set out in Ribeiro – specifically, the fourth factor. The mother raises concerns about the father’s lifestyle and behaviour. The mother is concerned that the father spends time in three households: a cousin’s home, a girlfriend’s home, and the paternal grandparents’ home. The mother is also concerned about the father’s recreational use of drugs.
[31] I agree with the mother that the father’s living arrangements are less than ideal. The father lacks certainty as to where he will be living. He does not know if he will be able to continue sharing accommodation with his cousin. The father does not appear to have extended stays in his girlfriend’s home. The father is unable to spend extended periods at this parents’ home because of the rules of the co-operative housing facility in which they live.
[32] Despite moving from home to home, the father’s uncontradicted evidence is that he and the people in the homes in which he spends time take COVID-19 precautions.
[33] The father’s girlfriend has two children. Justice Pazaratz addressed a “blended family” situation and noted that “parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household”: Ribeiro, at para. 16. I am satisfied that the father’s girlfriend exercises the appropriate level of caution for herself and her children. Both children are autistic and said to remain in the girlfriend’s home. The girlfriend is described as a stay-at-home mother, who leaves her home for necessities only.
[34] With respect to the paternal grandparents’ home, I note the following. The paternal grandfather has health issues and COVID-caution is exercised for that reason. Mrs. Beattie is a personal support worker. As the sole income earner in her household, she exercises COVID-caution so that she is able to continue to work.
[35] Of the three households in which the father spends time, the cousin’s home may be of the most concern. The father’s uncontradicted evidence, however, is that, with two exceptions, he and his cousin are the only people in the home. The two exceptions are the cousin’s girlfriend and son, both of whom visit once a week. The father’s evidence, again uncontradicted, is that he tries to be out of the home during those visits; he has managed to do so except for a couple of the visits.
[36] There is no evidence before the court that the father’s movement in the community – including from household to household – puts the Children and, if he visits his parents’ home, Alex at any greater risk than do the activities of the mother, the Children, and other members of their family (the latter including those as identified in the mother’s affidavit).
d) Summary
[37] I find that it is in the Children’s best interests that the January 2, 2021 access visit proceed on the terms to which the parties consented.
Issue No. 2 - Which, if any, of the access visits from January 16, 2021 forward shall be supervised by Mrs. Beattie?
a) The Positions of the Parties
[38] The father highlights that he consented to an order providing for supervised visits because it was the only way for him to avoid further delay in resuming the Children’s in-person visits with him. The Order was always intended to be a temporary one and is identified as such. The father submits that the mother has not met the burden she bears to establish that supervision continues to be required.
[39] In opposing the request for unsupervised visits, the mother once again relies on the father’s lifestyle and behaviour. Regardless of the outcome on the issue of supervision, the mother asks that the visits occur at the paternal grandparents’ home.
[40] The mother’s concerns with respect to the father’s ability – or, more accurately, alleged inability – to care for the Children on his own include the following:
• The father is charged with assault of the mother and mischief as a result of events alleged to have occurred on January 14, 2020. Those events precipitated the parties’ separation;
• The Children’s Aid Society (“CAS”) became involved with the family in early 2020 following the events described immediately above and at the referral of the Ottawa Police Service (“OPS”). The mother believes that the Children disclosed to a CAS worker, but not to the OPS during a subsequent interview, that they have been “abused” by the father.[^1] No charges were laid, and the CAS concluded that the Children are at risk of emotional harm;
• The father discussed subjects with the Children that are inappropriate – including with respect to the family law litigation;
• The father acknowledges that he has post-traumatic stress disorder, which he addresses in part through the use of cannabis; and
• A specific incident during the late September 2020 visit, when the father lost track of drug paraphernalia which contained an amount of drugs or drug residue that was potentially fatal for a child.
[41] Before dealing with the substantive issue, there is a preliminary evidentiary issue to be addressed.
b) The Evidence
[42] The parties were given the opportunity, between December 7 and 16, 2020, to file additional evidence with respect to the plans for Alex to visit his family’s home. In her December 10, 2020 affidavit, the mother included evidence about the Children and the access visits (paras. 10 and 11) and about the counselling she is currently attending (para. 12). The mother also referred to and attached copies of letters from Isabelle’s doctor (Exhibit “B”) and the mother’s psychotherapist (Exhibit “C”).
[43] The father asked the court to strike or disregard those portions of the mother’s December affidavit. The father emphasized that those portions of the affidavit did not comply with the order made by the court on the December 7, 2020 adjournment.
[44] I agreed with the father, finding that it was improper for the mother to address, in her additional affidavit, anything other than Alex’s visit. On the continuation of the motion on December 17, 2020, I ordered that paras. 10 to 12 and Exhibits “B” and “C” are struck from the mother’s December 2020 affidavit.
c) Analysis
[45] Both parties appear to understand that unsupervised access is the norm. “Supervised access is intended to address immediate and objective concerns of danger to the child[ren]”: Lishman v. St. John, 2014 ONSC 3813, at para. 7.
[46] I agree with the mother that neither parent should be discussing adult subjects with the Children, including this proceeding and the acrimony between the parties. That concern is not sufficient, on its own, to warrant an order for the continuation of supervised access. That concern can be and is addressed in the order made below.
[47] I am not satisfied, based on the mother’s November 2020 affidavit, that the father poses a risk of physical harm to the Children. The contents of the mother’s November affidavit do not rise to the level of evidence. The mother makes broad-sweeping statements about the disclosure by the Children of physical abuse by the father. The mother does not provide the name of the CAS worker who is the source of that information. In addition, the mother does not state that she believes the information to be true. I find that there is no objective evidence of an immediate concern that the Children will experience physical abuse by their father.
[48] The father’s uncontradicted evidence is that his post-traumatic stress disorder is currently successfully managed, he uses recreational marijuana, and most important, he does not use marijuana prior to or during his time with the Children. The September 2020 incident with the father’s drug paraphernalia is of concern given the danger said to be posed to a child if the drug residue had been consumed by one of the Children. The father’s cousin is identified, by the father, as having been involved in removing the paraphernalia from its usual spot. To their respective credit, the father and Mrs. Beattie addressed the situation immediately and transparently. Fortunately, the Children were not exposed to the paraphernalia.
[49] The paraphernalia was located in the cousin’s home. An incident like the one in late September 2020 can be prevented if (a) the father is precluded from having such paraphernalia in the home in which access visits occur, and (b) the access visits continue to occur at the paternal grandparents’ home.
[50] With the father’s living arrangements as uncertain as they are, and there being no end in sight to that uncertainty, the Children will have some stability by continuing to visit with their father at the paternal grandparents’ home. The father’s evidence is that he is permitted to stay overnight at his parents’ home a limited number of nights per week. There is no evidence that having the Children and the father stay overnight at that home one night every two weeks would be a breach of the co-operative’s rules.
[51] I understand that there are transportation issues because neither the father nor Mrs. Beattie has access to a vehicle. As a result, the Children are transported by OC Transpo, with transportation consuming a fair amount of time during each visit. Those logistical issues remain to be addressed by the parties; possible solutions include alternate arrangements for transportation and the father finding accommodation closer to where the Children reside. Unless and until the parties themselves take the initiative to resolve these issues, the order made addresses the stability the Children require.
[52] Lastly, the father’s post-traumatic stress disorder, as a mental health issue, is not sufficient to support continued supervision. The father describes the disorder as well-managed. A standard of perfect mental health is not required before an access parent is entitled to see their children: Zgonc v. Nunn, 2011 ONSC 3066, at para. 11.
[53] In summary, I find that the mother has not met the burden she bears to establish that access visits should be continued, in the long term, on a supervised basis. I am not, however, convinced that there should, as of January 16, 2021, be an immediate transition to unsupervised visits. That transition is to be made more gradually than as proposed by the father.
[54] The paternal grandmother has demonstrated her willingness to be involved in the access visits. Her dedication to the well-being of the Children is commendable and demonstrated by the manner in which she responded to the September 2020 incident. It is clear that Mrs. Beattie and the mother have a relationship of mutual trust that permits honest communication as between them.
[55] It is not the court’s intention to impose a regime of supervision that exceeds Mrs. Beattie’s level of commitment or takes advantage of the generosity she has demonstrated to date. For the sake of stability for the Children, the supervision shall continue on January 16, 2021 and for the Saturday only on each of the January 30-31, 2021 and February 13-14, 2021 weekends. Commencing with the February 27-28, 2021 visit, the in-person access visits shall be unsupervised.
Disposition
[56] For the reasons set out above, I order as follows:
- On the consent of the parties, Isabelle Jasmin Marie Holliday-Beattie (DOB: […], 2012) and Grayson Kael Holliday (DOB: […], 2013) (“the Children”) shall have in-person access visits with the Respondent,
a) on Saturday, December 19, 2020 from 10:00 a.m. to 7:00 p.m.,
b) on Thursday, December 24, 2020 from 10:00 a.m. to 6:00 p.m.,
c) on Saturday, January 2, 2021 from 10:00 a.m. to 6:00 p.m.,
d) on Saturday, January 16, 2021 from 10:00 a.m. to 6:00 p.m.,
e) from 10:00 a.m. on Saturday, January 30, 2021 to 4:00 p.m. on Sunday, January 31, 2021, and
f) every second weekend thereafter from 10:00 a.m. on Saturday to 4:00 p.m. on Sunday.
On the consent of the parties, the access visits scheduled for December 19 and 24, 2020 and January 2, 2021 shall be supervised by Jean Beattie. Jean Beattie shall be present for pick-up, transportation, and drop-off.
Paragraphs 10, 11, and 12 and Exhibits “B” and “C” are struck from the Applicant’s affidavit sworn on December 10, 2020.
The access visits shall continue to be supervised on January 16, 2021 and for the Saturday only on each of the January 30-31, 2021 and February 13-14, 2021 weekends. Commencing with the February 27-28, 2021 visit, the access visits shall be unsupervised. Jean Beattie shall be present for pick-up, transportation, and drop-off on January 16, 2021 and for pick-up and transportation on January 30 and February 13, 2021.
The parties shall refrain from discussing this proceeding with the Children and from exposing the Children to adult conflict.
All access visits, including overnight visits, shall occur at or be based out of the paternal grandparents’ home.
Costs
[57] If the parties are unable to agree on the costs of the father’s motion, they shall make written submissions as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs and any case law referred to in the submissions;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
c) The parties shall deliver their respective costs submissions by 4:00 p.m. on the fifteenth business day following the date on which this endorsement is released;
d) Reply submissions, if any, shall be delivered by 4:00 p.m. on the twentieth business day following the date on which this endorsement is released. Reply submissions shall comply with paragraphs (a) and (b) above.
Madam Justice Sylvia Corthorn
Date: January 12, 2021
COURT FILE NO.: FC-20-98
DATE: 2021/01/12
ONTARIO
SUPERIOR COURT OF JUSTICE
MELISSA CAITLIN HOLLIDAY
Applicant
– and –
MICHAEL JAMES BEATTIE
Respondent
ruling on motion
Madam Justice Sylvia Corthorn
Released: January 12, 2021
[^1]: Nov. 30, 2020 Holliday Affidavit, at para. 6(p).