Burrell v. Burrell, 2021 ONSC 681

COURT FILE NO.: FS-19-19713

DATE: 20210127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christina Nicole Burrell

Applicant

– and –

Darryl Burrell

Respondent

Mary Anne Ducharme, for the Applicant

Darryl Burrell, acting in person

HEARD: November 16 and December 10, 2020

REASONS ON MOTION

king j.

1The applicant, Christina Burrell (Christina), and the respondent, Darryl Burrell (Darryl), were married on May 11, 2013. They are the biological parents of two children, Andrew Burrell (d.o.b. October 28, 2013) and Gloria Burrell (d.o.b. June 29, 2015). They separated on March 11, 2019. Highly fractious litigation has followed.

2There are presently two motions before the court. By a motion dated October 19, 2020, Christina seeks the following remedies:

1. An order providing for interim custody of the children Andrew Burrell (Andrew) born October 28, 2013 and Gloria Burrell (Gloria) born June 29, 2015 to the applicant.

2. An order that the respondent have access supervised at the Supervised Access Centre provided he complies with COVID restrictions.

3. An order restraining the respondent from molesting, annoying or harassing the applicant.

4. An order restraining the respondent from posting anything about the children and or the applicant online on any social media platform.

5. An order restraining the respondent from attending at the children’s school.

6. An order for costs of this motion.

3That motion was scheduled to be heard on November 20, 2020.

4On November 16, 2020, the respondent, Darryl, brought a cross-motion, also returnable on November 20, 2020, seeking the following remedies:

1. An order that I, the Respondent, be granted an extra day for access to my children. Bringing my access from 48 to 72 hours a week.

2. The new access will take place every Thursday 2pm or after school, until Sunday 2pm.

3. An order for unsupervised access.

4. An order for costs of this motion.

Conduct of the Hearing

5The hearing of these motions commenced on November 20, 2020, via Zoom.

6During the course of submissions that day, Darryl referred to a series of text messages. He asserted the text messages were relevant to his position relating to the restraining order request. The dates of those text messages were not apparent on the documents displaying the text messages. Accordingly, the hearing was continued on December 10, 2020, in order to permit the dates of the text messages to be ascertained.

7Subsequently, Darryl filed an affidavit dated December 7, 2020, with copies of the text messages, noting the dates in handwriting of the text messages. As well, his affidavit included letters from a married couple - Currie Soulliere and Derek Soulliere. The letters are both dated November 19, 2020. Those letters spoke positively to the character of Darryl Burrell and his childcare skills. The two letters were attached to the sworn affidavit of Darryl, but they were not made under oath.

8In response, Christina filed a responding affidavit on December 9, 2020.

Background

9The parties separated on March 11, 2019 amid allegations of domestic assault by Darryl. Christina moved out of the matrimonial home with her children to reside with her parents.

10Matters became further complicated as the respondent was charged with assaulting the applicant. Following a trial in the Ontario Court of Justice, Darryl was convicted. As part of his sentence, he was ordered not to have contact with the applicant through January of 2021.

11The access regime of the respondent with his children has been in place since June 11, 2019 by Munroe J.’s order, which was modified on September 13, 2019, by Bondy J. The respondent currently enjoys access with the two children weekly from Friday at 2:00 p.m. to Sunday at 2:00 p.m.

12Additionally, Darryl’s access to his children must be supervised by Darryl’s mother. She also coordinates the pick ups and drop offs.

13Finally, Darryl is prohibited from ingesting, consuming, or using cannabis marijuana while having access with the children.

Covid-19

14The elevated level of friction between these parties has increased further since the onset of the COVID-19 global pandemic, as declared by the World Health Organization in March of 2020.

15In a decision pertaining to the sale of the matrimonial home dated May 26, 2020, Bondy J. found that Darryl has acknowledged that he believes the COVID-19 pandemic is a hoax.

16Darryl’s opinion and attitude towards COVID-19, masking, and his personal behaviour in public have not been altered since he appeared before Bondy J. He continues to emphatically deny the existence of COVID-19 and/or the effects of the COVID-19 pandemic for a number of reasons.

17Further, he does not deny the various Facebook postings attributed to his account. One posting shows an image of a large lion (black in colour) surrounded by many white sheep with the caption “WHEN YOU ARE THE ONLY ONE WITHOUT A MASK IN WAL-MART.”

18Other posting states:

Do you want change? Then join us this Saturday at 236 Talbot Street North Essex Ontario, this Saturday August 15, 2020 between 11:00 to 12:00 pm. We are against mandatory masks, social distancing, contract [sp] tracing, vaccinations. We want our human rights back. Keep your hands off our guns. Leave our churches alone. Fund the police. End all lockdowns and abolish your emergency powers. We will not accept a second lockdown.

This is happening this Saturday. If we want change let’s support this. I sure want this to stop.

19He has also stated online, “This is why testing is bullshit and only a propaganda control campaign.”

20A posting, dated June 26, 2020, includes a “selfie” of Darryl carrying a cake inside a store and not wearing a mask with the caption:

Just picked up a cake at Zehrs parkway. Security guard tried to stop me, much respect to him.

Existing condition…no mask.

I’m not the best selfie artist.

The cashier asked where my mask was also.

I have this pre-existing condition for standing up for my rights.

21On July 6, 2020, he also shared a post written by another individual that stated:

If there really was a DEADLY pandemic we wouldn’t need to be rushing to test EVERYBODY to prove it exists. People would actually be sick. Hospitals would all be full. People you actually know would be dead. None of that exists in reality but instead only on your television.

22The statement in that posting was profoundly erroneous. Sadly, it presaged what has occurred from the Fall of 2020 to date.

23The reality is that the number of COVID-19 cases has exploded. Cases are up, hospitalizations are up, and, sadly, deaths have increased as well. The number of persons being infected with COVID-19 continued in November, December, and January to rise at an alarming rate. Hospitals in Windsor-Essex (and throughout this province) are currently about to reach capacity. Physicians are warning that they may have to start rationing COVID-19 care.

24Countless numbers of surgeries, procedures, and treatments for other illnesses and conditions have had to be cancelled and/or delayed. The health care system cannot address all medical issues due to the health care needs of COVID-19 patients. The long-term effects of the pandemic and of delayed treatments to persons with other health conditions is currently unmeasurable.

25All of this has occurred while a percentage of our population, including Darryl, continue to deny the existence, significance and/or impact of COVID-19.

Analysis

26I will address the remedies sought by the parties.

27Before I address the specific issues, I start by indicating that I have not admitted the letters from the Souillieres dated November 19, 2020 into evidence on these motions. Neither letter was sworn under oath. Neither author was potentially subject to cross-examination. Accordingly, the letters are not admitted into evidence in this proceeding.

1. Is the applicant entitled to an order providing her with interim custody of the children Andrew (d.o.b. October 28, 2013) and Gloria (d.o.b. June 29, 2015)?

28It is clear that Darryl believes that the COVID-19 pandemic is a hoax and/or is being exaggerated by improvidently intentioned governments at all levels and by the media. He also believes masks are not only unnecessary but pose a greater health care risk.

29Darryl is entitled to his opinions. He is entitled to express those opinions by lawful means. However, it is not Darryl’s opinions alone that are at issue before the court. Rather, at issue is whether Darryl’s conduct in public poses a risk to the best interests of his children.

30Darryl is not only opposed to wearing masks but is boastful online about his anti-masking behaviour. As well, he has been in the public at rallies and in day-to-day activities not wearing a mask, or otherwise engaging in social distancing.

31As a result of this information, Christina seeks to be awarded interim custody of the children. She claims Darryl’s conduct puts the children at risk of acquiring COVID-19.

32She submits that the court should make an order limiting Darryl to only have access to the children at the Supervised Access Centre provided he agrees to COVID-19 protections. If that is ordered, Darryl and the children will be required to wear masks and maintain proper social distancing during access visits in order to minimize the risk of either child acquiring the COVID-19 virus.

33On a review and assessment of the evidence, I have concluded that the respondent’s behaviour is dictated by his world view. Everything else is subordinate to that view, including, but not limited to, his love for his children. He makes repeated assertions that they need to be permitted to spend more time with him and that time should not be supervised. However, he is not prepared to take steps to protect himself in public at all times; not only is he not taking precautionary steps, by his own evidence, he is attending public protests, unmasked, and taking other inappropriate steps. He readily admits, and is active online, confirming, even bragging, that he is engaging in actions and behaviours in the community while unmasked.

34During the hearing of these motions, Darryl indicated to the court that he had a “medical reason” for not wearing a mask. When the court inquired as to the nature of that medical exemption, he indicated that the reason was private, medical information, that he did not have to disclose.

35If Darryl has a bona fide medical reason to be exempt from wearing a mask, that is one thing. However, it is evident from his online postings that his purported medical exemption is not the product of a medical diagnosis, but rather convoluted logic based on belief. As he indicated when he posted about his maskless attendance at Zehrs – “I have this pre-existing condition for standing up for rights.” In effect, he has characterized his personal opposition to wearing a mask to a form of medical pre-existing condition. I do not accept this as in any way constituting the type of bona fide medical exemption currently recognized in Ontario.

36At this time of a serious health crisis, the best interests of Andrew and Gloria demand that their mother, Christina, be awarded sole custody on an interim and without prejudice basis.

37There are many reasons for awarding Christina custody in this respect. One reason is that should medical issues arise, Christina must have the ability to make decisions with the advice of physicians, and other medical personnel, that are in the best interests of the children. This is a reason that has come to play because Andrew has recently suffered an injury. Another reason is when a COVID-19 vaccine is made available, Christina must have the sole decision-making authority and responsibility with medical advice in this regard.

38Darryl’s opinions and amplification of those views are one thing. His conduct requires that Christina temporarily have sole custody to make all necessary decisions relating to, but not limited to, health care, schooling, and receiving a vaccine- when they are eligible.

39It is noteworthy, this is a temporary order. It is fully related to the ongoing COVID-19 pandemic and the respondent’s public behaviour. The issues of custody, residency, access, and responsibility for decision-making can be revisited once the myriad of health concerns arising from the COVID-19 pandemic subside.

40For all these reasons, I award interim and without prejudice custody of Andrew (d.o.b.: October 28, 2013) and Gloria (d.o.b.: June 29, 2015) to the applicant mother.

2. Should the court order that the respondent have supervised access at the Supervised Access Centre provided he complies with COVID-19 restrictions?

41Christina seeks to limit Darryl’s access to the Supervised Access Centre because his conduct in the community does not follow the current health and safety guidelines prescribed by all levels of government. By requiring all access to occur at the Supervised Access Centre, there will be some assurance that the children are not being unnecessarily exposed to COVID-19.

42Darryl’s motion seeks an outcome in the opposite direction from Christine. Specifically, he wants his access time with the children increased from 48 to 72 hours per week. As well, Darryl wants the court to eliminate the requirement that his access be supervised by his mother.

43The seminal decision of this court regarding issues of custody and access during the COVID-19 pandemic was released on March 24, 2020. In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. dealt with an application by a mother attempting to suspend access during the pandemic due to concerns that the father would not maintain social distancing.

44Pazaratz J. noted that the health, safety, and well-being of children and families remains the foremost consideration. He also recognized the presumption that existing orders will be complied with, and it is presumed that contact with both parents is in the best interests of a child.

45I agree with those sentiments and echo the general premise that maximum contact with both parents is in the best interest of a child.

46However, while the court did not interfere with the existing parenting arrangements in Ribeiro, Pazaratz J. made several prescient comments, at paras. 11, 13-14:

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, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

13. 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.

47This is one such instance where the behaviour of the respondent brings him squarely within the requirement for controls, as expressed in Ribeiro, at para. 13, and zero tolerance considerations, Ribeiro, at para. 14. Darryl is not just a person who disapproves of the government’s position and responses to the COVID-19 pandemic. He admits (at times, boastfully) to engaging in behaviour that not only fails to comply, but intentionally flaunts, social distancing guidelines. It is clear that he is intentionally failing to take reasonable health precautions during the COVID-19 pandemic.

48His behaviour puts the health of his children at risk during his periods of direct contact. It must not be permitted to continue. This court must have zero tolerance for any parent who intentionally and/or recklessly exposes a child to greater COVID-19 risk.

49While the respondent suggests he is acting responsibly in this respect, I am not satisfied. Darryl presented a photo of him and the children in the community wearing masks. Having the children wear masks while out in public is appropriate. However, that alone will not protect the children from acquiring the virus. Darryl is engaging in public behaviour, while unmasked, at times when he does not have access with his children. The respondent admits to numerous public attendances where neither he, nor others with him, were wearing masks. Should he acquire the virus during one of those times, he will be having access for as many as six days during the 14-day incubation period.

50As a result, there is significant risk for the children acquiring the rapidly contagious virus (at least until they are vaccinated). I note that since this motion was heard, several more contagious variants of the virus have emerged. They are all more highly contagious. Darryl suggests that there is little or no risk to his children because only one young child has died of COVID-19 in Ontario. Even if that is true, it is not helpful. It does not satisfy me that there is little or no risk that his behaviour could jeopardize the health of the children.

51Furthermore, not only could COVID-19 easily be transmitted to the children when he is unmasked and with the children, it could be passed on from the children to Christina.

52This could put Christina at greater risk of acquiring COVID-19 from one of her children, with whom she primarily resides. As their primary caregiver, putting Christine at an elevated risk of acquiring COVID-19 is also not in the best interests of the children.

53Darryl is entitled to whatever opinion he chooses regarding all aspects of COVID-19. He is also free to express his views to the public by whatever legal means are available to him in that respect. Having said that, his opinions are one thing, but his actions (and inactions) are another. The bests interest of the children should not be subordinated to Darryl’s behaviour in the community as they potentially heighten the risk of his children acquiring the virus.

54The health and welfare of the children (and by extension their principal caregiver) should not be jeopardized because of Darryl’s public behaviour in promotion of his opinions. Darryl boasts that he has a pre-existing condition of standing up for what he describes as “my rights.” That said, we are dealing with issues beyond Darryl’s rights. In dealing with access issues, the rights of others are, by definition, involved. Darryl has made a decision that his rights are the fulcrum around which everyone else’s rights are subordinate. That is flawed logic, even as Darryl couches in with the flag of increased access to his children.

55Effective immediately, the respondent’s in-person access to the children is temporarily suspended. His ongoing access must occur in a Supervised Access Centre and by Zoom, or some other suitable method. Only in that way will the contact between the respondent and the children be subject to appropriate mask wearing and social distancing.

56I do not make the decision to restrict Darryl’s access to the Supervised Access Centre lightly. I am aware he loves his children very much. He wants to spend more time with his children. I recognize that the requirement for supervised access will impact the amount of time Darryl will be able to enjoy access. I am hopeful that this period of supervised access is not unduly lengthy. Perhaps if a greater percentage of our community follow the directions to maintain social distancing, that timeframe will be reduced.

57I will set out the terms and conditions of the revised access at the end of this decision.

3. Should the court grant an order restraining the respondent from molesting, annoying or harassing the applicant?

58Darryl was convicted and sentenced for assaulting the applicant. A term of his sentence was the imposition of a no-contact order.

59Darryl presented text messages of communication with the applicant. He suggests the text messages demonstrate her lack of fear of him. All of those text messages, save one, pre-date the assault for which Darryl was convicted. Accordingly, without assessing the content and circumstances of the text messages, I find they are of no probative value. Whatever the applicant’s views regarding her safety while with Darryl during the currency of the marriage, her views have likely gone through a paradigm shift post-assault.

60Having said that, I am dismissing this portion of the application.

61While it is concerning that there exists a high level of discord between these parties, there is no current evidence before the court to confirm Darryl will likely molest, annoy, or harass the applicant at this time. There has been no indication that Darryl has failed to abide by the no-contact order. In these circumstances, it would not be appropriate that such an order be made prospectively. Upon termination of the no-contact prohibition, should Darryl conduct himself in a manner that could be considered as molesting, annoying, or harassing the applicant, Christina can seek a remedy at that time.

62However, to minimize the risks that there will be unnecessary and uncomfortable ongoing friction between the parties, I am ordering that once the no-contact order from the Ontario Court of Justice is lifted, the parties are to communicate with each other using The Family Wizard, or some other accepted communication tool. In this way, there will be a written record of communication and less opportunity for “he said/she said” type of disagreements.

4. Should the court restrain the respondent from posting anything about the children and/or the applicant online on any social media platform?

63As worded, this request is denied. Darryl is a parent. Some parents post items and photographs about their children, their activities, and their accomplishments. In this respect, Darryl should not, a priori, be denied those basic parental privileges by a blanket prohibition. However, pursuant to Family Law Rules, O. Reg. 114/99, r. 1(6), Darryl is prohibited from posting any pictures or depictions on social media with his children that reference the COVID-19 pandemic, or this legal dispute.

5. Should the court grant an order restraining the respondent from attending at the children’s school – St. Louis, 176 Talbot Street East, Leamington, Ontario N8H 1M2.

64This request is also denied. At best, it is premature. If Darryl behaves in a disruptive or inappropriate manner at the children’s school, the school administration and the School Board have policies and procedures in place to deal with those issues. I also note the School Board is not a party to these proceedings.

6. Should the applicant be awarded costs?

65I am not awarding costs as there was mixed success on the motion.

Order

66Accordingly, it is ordered that:

1. The applicant, Christina Burrell, is awarded interim and without prejudice custody of Andrew Burrell (d.o.b. October 28, 2013) and Gloria Burrell (d.o.b. June 29, 2015).

2. Whenever Christina has to make an important decision regarding the health, schooling, or religious activities of either child, she may elect to seek written input from Darryl in such respect. In any event, Christina will be required to provide Darryl prompt and clear written notification via electronic communication such as Family Wizard (as set out below) of any such situation, her decision in that respect and any outcome.

3. Except as specifically altered, modified or amended herein, the order of Munroe J. dated June 11, 2019, as amended by the order of Bondy J. dated September 13, 2019 is continued.

4. On a temporary basis, the respondent’s in-person access with Andrew Burrell (d.o.b. October 28, 2013) and Gloria Burrell (d.o.b. June 29, 2015) must occur at the Supervised Access Centre, or some other suitable community agency as approved by this court.

5. With respect to the in-person access at the Supervised Access Centre, the respondent will be entitled to up to three access sessions a week for up to two hours duration, subject to availability and scheduling at the Supervised Access Centre. The applicant will be required to reasonably facilitate all such access visits.

6. The respondent will be required to abide by all conditions imposed by the Supervised Access Centre as a pre-condition to access.

7. In the event the respondent’s mother is unable to participate in access visits at the same time as the respondent, the court will remain seized to establish an access schedule in that regard.

8. In the event there is no Supervised Access Centre available in Windsor, or there is no availability for three sessions per week, the respondent will be entitled to reasonable virtual access visits with the children for up to 30 minutes per session via FaceTime, Zoom, or other suitable method.

9. Effective immediately, the parties are to communicate using the Family Wizard, or some other accepted family communication tool. The parties will equally share the cost of such service.

10. This newly ordered supervised access regime will remain in effect until such time when the respondent can reasonably satisfy this court that it is safe for him to have in-person access with the children and that such in-person access is in their best interests.

11. The parties are directed not to make disparaging comments about each other, or this case, in the presence of the children.

12. The respondent is prohibited from posting any pictures on social media or depictions with his children that reference the COVID-19 pandemic, or this legal dispute.

13. I will remain seized for the purpose of resolving or finalizing any of the terms and conditions of this access order as set out above.

14. I am not otherwise seized. Specifically, I am not seized of any application made by Darryl that he can reasonably satisfy the court that in-person access with the children should resume.

15. This endorsement is an order of the court, enforceable by law from the moment it is released.