Skuce v. Skuce Endorsement- Justice Doyle highlights relevant issues related to COVID-19

Case: Skuce-v-Skuce-3-26-2020

CITATION: Skuce v. Skuce 2020 ONSC 1881 COURT FILE NO.: 19-2430 DATE: 2020/03/26 SUPERIOR COURT OF JUSTICE - ONTARIO RE: M el Skuce, Applicant AND Le  ah Skuce, Respondent BEFORE: The Honourable Madam Justice A. Doyle COUNSEL: Jack Pantalone, Counsel for the Applicant Marta Siemiarczuk, for the Respondent HEARD: March 26, 2020 at Ottawa via telephone conference ENDORSEMENT  
  • The issue is whether this matter is urgent and should proceed as an exception to the March 15, 2020 directive issued by the Chief Justice of the Ontario Superior Court of Justice that all family matters are adjourned due to the COVID-19
  • For the reasons that follow, I find that this matter is urgent. Having found that the Court must deal with this matter on an urgent basis, the Cout1 will modify the previous Court Order dealing with access by the father to the children as set out
  • In the event of a change of circumstances, the parties may bring this matter back before me as arranged through the Trial
  • The parties commenced cohabitation in September 2008 and were married on July 25, They separated on May 18, 2019.
  • There are three children of the marriage: D born November 8, 2012 (7 years old), N
born October 8, 2014 (5 years old) and A n born September 30, 2016 (3 years old).
  • The children reside with their mother, the respondent, L h Skuce. After the separation,
the pai1ies agreed that the father would visit with the children supervised by his mother or her husband.
  • In July 2019, the Respondent mother insisted that she supervise visits as she stated that this had been recommended by the Children's Aid Society (CAS). This contention is not supported by the evidence filed, namely, the letter from the CAS employee,  Ranger.
  • On October 16, 2019, the parties attended with a mediator, Marianne  The parties signed a parenting agreement dated November 8, 2019 which provided that the father's access with the children would be supervised by the mother for 2.5 hours each Saturday or Sunday and 15 minutes at the children's school on Tuesday mornings (7:15 a.m. to 7:30 a.m.)
  • The father is a recovering addict and indicates that he has been free from drugs/alcohol since November 2019. Prior to that time, he indicated that he was sober from 2010 to May 2018.
  • He has outlined that he is in recovery: he attended the Bellwood Program in Toronto for a 6-week program in the fall of 2019. He had been there previously in the spring of 2019. He has been residing at the Sobriety House since the fall of 2019. He indicates that he is staying now at a friend's home and the friend is absent from the He returns to Sobriety House in the evenings. Sobriety House has implemented a number of measures to comply with COVID-19 protocol including social distancing, no visitors permitted, available sanitizers, etc. The father indicates, which is confirmed by his mother and her husband, that he is invited to return home to live with them.
  • The father is under the care of psycho-therapist  John Robertson who, in his filed report, indicates that the father is in recovery and has followed his rehabilitative program including the regular drug/alcohol screening tests and attending Alcoholics Anonymous (AA) meetings and therapy sessions. The father is also attending regularly with his psychiatrist Dr. Serge Lessard.
  • The Court proceedings include the following:
  • The father brought an urgent motion returnable on December 17, 2019 which was dismissed by Justice Summers as she found that there was already an access schedule in place as had been agreed to by the parties and the case conference could be moved up to an earlier date;
  • On December 17, 2019 the parties agreed on a Christmas access schedule;
  • A case conference, originally scheduled for February 27, 2020 was moved to an earlier date of January 8, 2020, was held before Master Kaufman;and
  • The father brought a motion returnable March 24, 2020 that was settled on March 14, 2020 through an exchange of correspondence between
  • The parties signed Minutes of Settlement dated March 16, 2020 which provides, among other things, for the following access by the father:
  • 30 minutes before school at HopewellSchool;
  • Every Saturday from 9:30 a. to 3:30 p.m. as follows:
9:30 a.m. to 12:30 p.m. supervised by the mother in the community; - 12:30 p.m. to 3:30 p.m. supervised by his mother or her husband at a location to be determined by them; and
  • Random drug and alcohol testing twice per month paid by the
  • These Minutes of Settlement were incorporated into a Consent Interim Order which was filed with the
  • The parties have agreed to a custody/access assessment but the assessor,  Worenklein, has not commenced the assessment at this time.
  • The Police and Children's Aid Society records were filed in the original motion scheduled for March 24,
Urgency Position of the parties Father's position
  • The father requests that the Court hear this matter on an urgent basis as the mother's self­help remedy should not be
  • Heis requesting an Order that he have face to face contact with the children in accordance with the Minutes of Settlement dated March 15, 2020 but that his parents supervise. His mother, M a Skuce has filed an Affidavit in support of this motion and his step­ father, Jim Nininger, his mother's husband, has also filed a supportive Affidavit.
  • The father indicates that he is committed to sobriety, has followed all his recovery steps and it is in the children's best interests that he have regular contact with them and that he is prepared to follow all COVID-19
  • He indicates that the mother's supervision of access to date has not been in the children's best interests as she has called him "M   l" or "addict" in their presence and he alleges that one of the children has called him a "dangerous man".
Mother's position
  • The mother submits that this is not an urgent
  • She submits that due to the COVID-19 directives, all contact with the children and their father should be via Facetime or
  • She submits that his motion be dismissed but that the access continues only by video­
  • She indicates that the father was still Facetiming the children on March 22, 2020 and March 23, 2020 from the Sobriety House which has shared living areas including a shared dining room.
  • She submits that the father has not been self-isolating and any future face to face contact with the children jeopardizes the children's health as well as her health and her parents'
  • The Court has rendered this matter urgent as the best interests of the children dictate that the legal aspects of their time with their father be  These are my reasons.
Signed Minutes of Settlement
  • Firstly, the Court notes that the parties signed Minutes of Settlement that resolved the motion returnable March 24,  The parties had submitted the draft Order approved as to form and content with the Court. It is unknown at this time whether the Order has been issued.
  • The father simply wishes to enforce the terms of the Minutes with some modifications and the mother is asking for them to be changed so that the children only see their father through
  • The mother is essentially wishing to resile from the agreement due to the intervening world events.
  • These are exceptional and unusual times for everyone. A pandemic has been declared by the World Health Our world, as we know it, has changed dramatically. Directives from various levels of government are being declared on a constant basis.
  • There is a great deal of uncertainty and news bulletins regarding the spread of this deadly disease permeate our We are subject to a barrage of advice and comments on how to keep ourselves safe.
  • It is an understatement to state that people are experiencing anxiety and scrambling to understand how to navigate this new The impact of this pandemic is being experienced on so many different levels including health care, economy and social networks.
  • It is vital for the children of separated families who have parenting times with caregivers be provided with some certainty. That certainty which is contained in Court Orders should be If modifications must be made, parties are encouraged to modify the agreement/Order. In this way, litigants can ensure that the children's best interests are safeguarded during this troubled time.
Discouraging self-help remedy
  • Regarding urgency, I have reviewed MacPherson J.'s decision of March 25, 2020 in Douglas Douglas, where as a triage Judge, he declined to deal with the case as an urgent matter. Since February 2020, the father had been regularly exercising access without a court order/agreement in place and the mother had unilaterally changed the status quo and would not allow the father face to face contact to the 6.5 year old child due the father exhibiting health risk behaviour. Justice MacPherson found that the case did not meet the definition of urgency as set out in the Superior Court of Justice's Notice to the Profession of March 15, 2020.
  • In this case, there is a consent order. The mother has chosen not to respect it. She indicates it is no longer in their best interests. She has engaged in a self-help remedy despite a clear consent Order that was filed a few days ago. The Court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.
Urgent relief dealing with the contact between a party and a child
  • In my view, this case falls within the ambit of the Notice to the Profession as it deals with safety of the child/parent, restrictions of contact and well-being of the child and issues relating to the retention of the  It also will deal with upholding respect and compliance with existing Court Orders.
  • In order to deal with this health crisis, the Superior Comt of Justice issued a Notice to the Profession dated March 15, 2020 which is available at https:/ which states: Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
  1. requests for urgent relief relating to the safety of a child or parent (e.g., are restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order ina child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
  4. Certainly, the above directive recognized the importance of protecting children and ensuring that their needs were not jeopardized during these uncertain
  5. Uncertainty and lack of direction can add further havoc to the lives of the children who are most vulnerable when the parties are unable to resolve
  6. As stated in the parties' first parenting agreement signed October 22, 2019, the children need a structured plan of parenting and care and this must be established and not changed spontaneously based on the parents' changing prefere The parties' interim consent Order attempted to instill some predictability.
  7. The children need and deserve stability, comfort and predictability in their lives.
  8. Despite the current world events, this can be
Family Law Rules' primary objective
  • Thirdly, I note that rules 2(2),(3) and (4) of the Family Law Rules, Reg. 114/99, state that:
  • The primary objective of these mies is to enable the court to deal with cases justly. 0. Reg. 114/99, 2(2).
  • Dealing with a case justly includes, ensuring that the procedure is fair to all parties; saving expense and time;
  • dealing with the case in ways that are appropriate to its impo1iance and complexity; and
  • giving appropriate court resources to the case while taking account of the need to give resources to other cases. 0. Reg. 114/99, 2 (3).
  • The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. 0. Reg. 114/99, r. 2 (4).
  • I find that the children need some stability in their lives by ensuring that there is regular contact with their father in accordance with their best interests.
  • The Court should devote some time to this matter given its importance to this family and implications to all families in these unique
Definition of urgency
  • As stated in Rosen v. Rosen, [2005] J. No. 62, which refers to Hood v. Hood,[2001] O.J. No. 2918 (S.C. -Family Court), in which this definition was considered.
  • These cases are decided as to when a court should hear a motion before a case  He commented, "It is my decision that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference."
  • These cases do provide some guidance when dealing with urgencies in a general. The first step mentioned in Rosen is an inquiry as to how quickly case conference dates are available to deal with the Here, the availability of next dates given the Superior Court of Justice directive is not until June and that does not necessarily mean that it will be dealt with in a wholesome way but could be just addressed.
  • As this is written, the future is  This uncertainty as to whether a matter could be addressed sooner or later is unpredictable.
  • The next step raised in the Rosen case its that prior to bringing a motion the parties should engage in settlement discussions to try to obtain a resolution of the pressing matters pending the case conference
  • This step should still Family law litigants and their counsel, if any, must continue to take all reasonable steps to resolve their matters
  • I note that there were exchanges of emails prior to this motion and the father was not prepared to accept the mother's position that any contact with his children would be only by video­
  • Yelle Scorobruh, 2016 ONSC 3300, also provides other criteria to consider at para. 50:
  1. Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator's  If so, the dates available should be included in the materials before the court;
  2. Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate  For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date and so this date must be taken into account in determining urgency;
  3. Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
  4. Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;
  5. Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, dire financial circumstances;
  6. Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non­compensable harm; and/or
  7. If there are other pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues, this may bring the matter out of the normal procedure as it may require immediate attention by the
(57]   Having considered the above, this matter requires the Court's immediate attention. I find that the father has established the need to deal with this case at this time. The mother is also asking the Court to deal with the terms of access by the children to their father. (58] The children's safety is of concern and hence I am prepared to deal with this matter. Best Interests of the Children (59] The next issue is what court order should be made. Position of the parties (60] The father wishes access to be supervised by his parents in their home. He intends to move out of Sobriety House. [61] The mother wishes his access to be to the children via videoconferencing for two hours three times per week. What Order is in the children's best interests? (62] In  determining  what access the father shall have to the children the Court is governed by the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (" Divorce Act") which stipulates that custody/access shall be determined in accordance with their best interests. (63] I am not dealing with this motion as the original motion scheduled for March 24, 2020. The mother did not file responding materials to the father's affidavit dated March 10, 2020as the motion had been settled by the parties by way of minutes of settlement dated March 16, 2020.
  • The father provides great detail in his affidavit of the mother's eff01ts to minimize access and making misleading information to third
  • These allegations will be dealt with at another juncture once the mother has responded to They may also be canvassed during the assessment process.
  • Rather, the Court intends to focus on what is in the children' s best interests given the health issues that have arisen since that
  • Are the terms of the Minutes of Settlement dated March 16, 2020 in the children's best interests?
  • The parties signed it with the advice of their respective lawyers and as the parents of these three children, believed that on the interim basis the terms met the children's best interests. The Minutes of Settlement allowed the father regular time with the children with the weekly supervision being monitored by the mother and the paternal grandmother or her husband. It provided for regular substance abuse testing and ensured that the children were safe with the
  • The Minutes of Settlement were signed after the declaration by WHO that COVID-19 was a pandemic but before there were measures put in place such as declarations of emergencies, closure of non-essential businesses, banning of gatherings and directives for social
  • The onus is on the mother to satisfy the Court that this parenting plan is no longer in the children's best interests and that the children would be at risk if this access was
  • In his March 24, 2020 decision of Ribeiro Wright, 2020 ONSC 1829, Justice Pazaratz dealt with a case where the mother had brought an urgent motion to suspend all in-person access because of COVID-19.
  • As the triage Judge, Justice Pazaratz did not authorize the matter to proceed as an urgent matter at that
  • The father has indicated a willingness to adhere to the appropriate COVID-19 protocols in the future. The maximum contact principle set out it in the Divorce Act should be respected so long as it is in the children's best interests.
  • Although, the health, safety and well-being of children remains the Court's foremost consideration during the COVID-19 pandemic, Justice Pazaratz noted that there was an existing parenting agreement and that it is presumed that meaningful personal contact between the parent and the children is in the children's best
  • However, there are constant well-publicized directives from the government and other public health officials directing that in these exceptional circumstances and extraordinary times, much of individuals' lives and daily routines and activities will be needed to be
  • Individuals are told to practice social distancing and limiting community Ontario government as of midnight yesterday directed all non-essential businesses to close.
  • As stated by Justice Pazaratz at 21 of his decision, if a parent wishes to limit the contact between a parent and a child during this crisis, they will be required to provide:
  1. Specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19
  2. 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;
  3. 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.
  4. 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  This is a very good time for both custodial and access parents to spend time with their child at home.