Court File and Parties

CITATION: Lapier v. Roebuck, 2017 ONSC 1640 COURT FILE NO.: D56/16 DATE: March 17, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Jonathan Bruce Lapier, appellant AND: Michelle Roebuck, respondent

BEFORE: MITROW J.

COUNSEL: Sharon Hassan for the appellant David Winninger for the respondent

HEARD: March 3, 2017

ENDORSEMENT

INTRODUCTION

[1] The parties have 3 daughters, ages 9, 11 and 12. This is the appellant’s motion pursuant to r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to stay the week-about parenting plan and child support contained in the final order of Korpan J. dated November 18, 2016, pending the hearing of the appeal in this court[^1]. The trial lasted in excess of two weeks.

[2] The appellant’s motion seeks to have the respondent’s access suspended or, in the alternative, to have the respondent’s access supervised at Merrymount Children’s Centre (“Merrymount”).

[3] The appellant’s motion has been before me on three previous occasions, where adjournments were granted to allow the respondent to file material. On those occasions, and on a without prejudice basis to the respondent, interim orders were made that included a stay of the week-about provisions set out in the final order, and that provided for the respondent to have specified daytime access (except for the first order covering the Christmas holiday that included an overnight).

[4] On February 17, 2017, at which time the appellant’s motion was adjourned to March 3, 2017 for argument, the respondent’s access, pending that date, was suspended entirely, based on her failure to file further material (that was the reason for the last adjournment) and based on evidence from the appellant that the respondent had missed her last two Saturday visits.

[5] I have now had an opportunity to consider all the evidence filed, and submissions. For reasons that follow, a stay is granted as to the week-about parenting plan, and child support, but the respondent shall have day access and the right to seek additional access, on motion, if she obtains her own suitable accommodation.

THE BACKGROUND

[6] For convenience, I repeat the background set out in the first endorsement[^2] at paras 9 – 17:

[9] The parties have three children together: Jonelle (age 12), Cloe (age 11) and Tavia (age 9) (“the children”). Each party also has children from previous relationships.

[10] As appears from the reasons for judgment, the trial commenced February 8, 2016 and concluded May 9, 2016. The order, in relation to custody and access, provided for a parenting schedule where all three children spend alternating weeks with each party, with the exchanges occurring on Fridays. Each party is responsible to make the day-to-day decisions when the children are in that party’s care. The final order further provided that the parties shall communicate about important decisions in the children’s lives, and seek the other’s input, failing which the respondent shall make the final important decisions regarding the children. The final order also included detailed provisions for holidays, vacation and special occasions.

[11] The proceeding leading to the final order was a motion to change a previous final order (“previous final order”) made on consent, dated March 9, 2012, that provided for joint custody of the children with primary residence with the respondent, and with the appellant to have reasonable access as may be agreed and the access shall not be unreasonably denied.

[12] The reasons for judgment summarize a number of events occurring subsequent to the previous final order. The result was that the children had resided with the appellant since near the end of June 2013 (para. 35). Further, the respondent did not see the children for approximately one year from June 2013 to June 2014 (para. 38).

[13] The appellant commenced the motion to change in the present case in April 2014; on June 18, 2014, Templeton J. made a temporary order for access in favour of the respondent each weekend, being from 10:00 a.m. to 5:00 p.m. on Saturday of one weekend, then on Sunday from 10:00 a.m. to 5:00 p.m. the following weekend, and alternating between Saturdays and Sundays, until further order of the court.

[14] The trial judge found that the eldest child, Jonelle, has refused contact with her mother since January 2015 and has consistently refused to attend for access with her two sisters (para. 89).

[15] The reasons note that the parties cohabited for about five and a half years and that they separated in February 2009 (para. 10), and that the respondent was the children’s primary caregiver from birth until March 2013 (para. 83).

[16] The trial judge, in her reasons, canvassed the evidence, and why the co-parenting week-about order was made, notwithstanding that Jonelle had not seen her mother since January 2015.

[17] In her reasons, the trial judge described that the respondent’s plan was to live with the children in her apartment close to the school, and that the respondent intends to obtain her paralegal licence and find employment (para. 94).

[7] However, between the conclusion of the trial in May 2016, and the release of reasons in November 2016, the evidence filed on the appellant’s motion indicates that some significant events intervened.

[8] In ordering the week-about parenting plan, the trial judge found that the respondent had secured a two-bedroom apartment for herself and the children, within walking distance of the children’s school effective March 1, 2016. However, the evidence on the motion was that the respondent had moved out of that apartment shortly before the trial judge’s reasons were released. She took up residence temporarily in a two-bedroom apartment occupied by the respondent’s female friend and her young son.

[9] When the trial concluded, the existing interim access order that had been in place since June 2014 continued pending the release of the judgment. The access exchanges had been ordered to take place at Merrymount.

[10] The evidence establishes that this interim access stopped around June 2016, although the parties disagree as to why the visits stopped. The appellant deposed that the respondent was inconsistent in her attendances and that she missed “numerous visits” with little or no notice. The respondent denies this allegation; it is her evidence that “by June 2016,” the appellant had stopped bringing the children to Merrymount for access exchanges. While this conflict in the material cannot be resolved on this motion (there was no cross-examination on the affidavits), it is clear that about a month after the trial ended, that the respondent was no longer seeing her children.

[11] In her reasons, the trial judge, at para. 97, noted the agreement of both parties that counselling for them and for the children is necessary; and the trial judge referred to being advised, during closing argument, that the appellant had agreed to pay for counselling for the child, Jonelle, to re-build her relationship with her mother; the trial judge expressed being “hopeful” that the “counselling for all is well underway” and that the respondent and Jonelle have reconciled.

[12] However, after the trial ended, the report from the counsellor, Sheila O’Donovan, a “registered art therapist/clinical trauma specialist,” dated July 7, 2016, indicated clearly that there was no reconciliation between the respondent and Jonelle. This report described various concerns that Jonelle reported about seeing her mother, and the report confirmed that Jonelle did not want to see her mother. The therapist was not successful in attempting to explain Jonelle’s sessions to the respondent; according to the therapist, the respondent made derogatory remarks, was cursing, raised her voice, and left abruptly indicating that she was not returning.

[13] No issue was raised by the respondent during argument as to the admissibility of this report.

[14] In relation to the respondent’s accommodation, she has continued to reside at the apartment of the female friend and her son. It is apparent on the evidence that this two-bedroom apartment is not close to the children’s school, and that it is not suitable for week-about visits. The respondent tacitly acknowledged the inadequacy of this accommodation by choosing, frequently, to exercise her access at various motels or hotels.

[15] Since the release of the judgment, access has, at times, been problematic. This includes the following described in paras 19 and 20 of my first endorsement[^3]:

[19] Following the release of the reasons for judgment, and during the respondent’s second week with the children (December 9 – 16), the appellant’s evidence was that he learned from the children that they were alone late one evening; the appellant called police, who in turn investigated, found the children alone, and the appellant was required to attend after midnight to pick up the children.

[20] At the hearing of the motion, the respondent did admit that the children were alone, and that the female person who lived there also was not home. The respondent did not dispute that she arrived home as the appellant was picking up the children.

[16] In relation to the access set out in the without prejudice interim orders, the respondent did agree that she missed some visits. In her last affidavit, she blames this on the access schedule being “confusing” to her. I find that there was nothing confusing about the access schedule in force at that time: every Saturday noon to 6 p.m., and alternate Sundays noon to 6 p.m.

[17] While the children were on an access visit on December 28, 2016, at a motel, the following occurrence is described in the second endorsement[^4]:

[5] On December 28, 2017, the respondent had the children with her as ordered. She had taken the children to the Lighthouse Inn in London. While there, the appellant was contacted by the eldest child, Jonelle, who forwarded two brief video clips of the respondent, who appeared at times disengaged from her surroundings, while lying on the bed. The appellant deposes that the children became alarmed as to the respondent’s state. The appellant called an ambulance, and arrived at the inn while the ambulance was there.

[6] The respondent deposes that she had had “some form of seizure” on that occasion, and that that has happened before with the cause not being determined. She deposes that she did not require the ambulance to take her to hospital on that occasion; she further states that she has an appointment with her family physician on January 20, 2017.

[18] While the respondent did fail to attend for some access visits, it was found also that the appellant had denied the court-ordered access[^5]:

[11] The appellant deposed that on January 2, 2017 he told the respondent via text that she should get help and that he was not allowing the children to be alone with the respondent until she got help. In essence, the appellant took matters into his own hands and denied court-ordered access, without seeking the court’s approval.

[19] There was no medical evidence from the respondent as to the reason for her seizure-like symptoms because the January 20^th^ appointment with her doctor was postponed. The respondent deposed in a later affidavit that she was “unable to attend” that appointment without explaining why.

[20] In her last affidavit, the respondent deposed that she is looking for accommodation in the area of the children’s school, and that “in the meantime” she intends to stay where she currently is. She deposes that her friend has a one-year lease that her friend intends to renew – however, there is no affidavit from the respondent’s friend.

THE TEST ON A MOTION FOR A STAY

[21] The three-part test for a stay was discussed in the first endorsement[^6]:

[24] The test to be applied on a motion to stay is a three-part test: (1) whether the appeal raises a serious issue that the trial judgment is wrong; (2) whether the children will suffer irreparable harm if a stay is not granted; and (3) whether the balance of convenience favours a stay; further, the overriding consideration, reflected in the three-part test, is the children’s best interests, and the court must be satisfied that it is in the children’s best interests to order a stay: Lefebvre v. Lefebvre, 2002 17966 (ON CA), [2002] O.J. No. 4885 (Ont. C.A.) [In Chambers]; see also Berry v. Berry, 2010 CarswellOnt 10983 (Ont. C.A.) [In Chambers].

[25] The appellant submits that the first part of the test involves a low threshold – namely that the appeal is not “frivolous or vexatious.” The appellant cites Mudry v. Danisch, 2014 ONSC 4335 (Div. Ct.) at para. 168 as to the meaning of “serious issue”:

168 This part of the test involves a low threshold. It can be met as long as the question raised by the appeal is not "frivolous or vexatious." Circuit World Corp. v. Lesperance, 1997 1385 (ON CA), 1997 CarswellOnt 1840 (C.A.) at para. 9; Ontario v. Shehrazad Non Profit Housing Inc., 2007 CarswellOnt 2113 (C.A.) at para. 19.

[26] Although Mudry draws its conclusion from the authority of two decisions of the Court of Appeal for Ontario, other decisions of that court suggest that the test is satisfied where it is shown that the appeal has a “reasonable prospect of success,” and that it is not necessary for an appellant to convince the court that an appellant will win the appeal or even probably win the appeal. In Buccilli v. Pillitteri, 2013 CarswellOnt 16731 (Ont. C.A.) [In Chambers], the court relied on Fiala Estate v. Hamilton, 2008 ONCA 784 (Ont. C.A.) and stated:

The Test for a Stay

34 The test for a stay of an order pending appeal, under Rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg, 194, is well-established: see e.g. Fiala Estate v. Hamilton, 2008 ONCA 784, 173 A.C.W.S. (3d) 33, at para. 14. It mirrors the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 that is employed in determining whether to grant an interlocutory injunction. Thus, the moving party must establish that:

• the appeal raises a serious issue;

• it will suffer irreparable harm if the stay is not granted; and

• the balance of convenience favours a stay.

Does the Appeal Raise a Serious Issue?

35 To answer this question, the appellants need only show that the appeal has a reasonable prospect of success; they need not convince me that they will win the appeal or even probably win the appeal: Fiala, at para. 15.

DISCUSSION

[22] The analysis as to whether there are grounds is influenced, substantially, in my view, when the “fresh evidence” is considered, which for the purpose of these reasons, consists of relevant facts arising subsequent to the conclusion of the trial in May 2016.

[23] The grounds of appeal focus primarily on: a) the fact that the children had a stable home with the father for over three years at the time of trial; b) that Jonelle had not been seeing her mother for some time prior to trial; c) that in considering the factors in s. 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, that the trial judge failed to give sufficient or appropriate weight to the apparent breakdown of the relationship between Jonelle and her mother including the fact that the Office of the Children’s Lawyer (“OCL”) recommended that Jonelle not be forced to see her mother at this time; d) that the respondent had an unstable residence history; e) that the effect of the judgment was to take the children out of a stable home, and to place them (when with the respondent) in an unstable and untested home; and f) the length of time it took to render the judgment.

[24] On this motion there are no trial transcripts, although the evidence includes the reasons for judgment and the two OCL reports. It is trite to observe that the trial judge had the benefit of all the trial evidence, including hearing testimony from both parties.

[25] Although the children were with the appellant for the last three years or so, the trial judge’s reasons do set out the turbulent history in this high-conflict case, including the trial judge’s finding that the respondent was the children’s primary caregiver from birth until March 2013.

[26] The trial judge found that both parents had their own issues that they must take steps to resolve – the trial judge was left with concerns about both parents (para. 86).

[27] The trial judge found that the appellant had engaged in a criminal lifestyle in the past and the trial judge found that the appellant was untruthful when he told the OCL clinical investigator that he had a stable income from a roofing company that he owned and that he was not involved in the drug trade. The trial judge stated at para. 12, in part, and para. 13:

[12] … The father’s evidence about how he currently earns a living is incredible and I do not believe it.

[13] Where the father's evidence conflicts with that of the mother and the other witnesses, I prefer the evidence of the mother and the other witnesses.

[28] The trial judge’s reasons reflect that she considered both OCL reports. These reports were appended to the clinical investigator’s affidavits sworn December 1, 2014 and January 28, 2016, the latter affidavit being prepared shortly before the trial commenced in early February 2016.

[29] The OCL reports detail the children’s exposure to the significant conflict between the parties and the pleas from the children for the conflict to stop. The first OCL report recommends, inter alia, that sole custody remain with the appellant, with access to the respondent to all the children alternate weekends from Friday evening to Sunday evening. However, significantly, at page 13, this report noted no concerns regarding the respondent’s relationship with the children, and recommended that access increase to “50/50” when the respondent’s financial circumstances allowed her “to foster a stable living environment and when she can transport the children regularly to and from school.”

[30] The second OCL report retains the sole custody and alternate weekend recommendation contained in the earlier report, but subject to the concerns regarding the relationship between Jonelle and her mother.

[31] This report stated that Jonelle did not wish to see her mother, and recounted Jonelle’s concerns that included her mother’s drinking, smoking and male partners. The clinical investigator recommended counselling for Jonelle regarding her expressed anger towards her mother, and that Jonelle should not be forced to see her mother “until she feels ready.”

[32] However, at page 6 of this second report, the clinical investigator states that because both parents have exposed the children to adult conflict, that Jonelle’s disinterest in having a relationship with her mother at this time “may be a result of negative feedback from both parents.” This evidence that was before the trial judge is capable of an interpretation that would suggest some caution in placing weight on Jonelle’s alleged desire not to see her mother.

[33] In the second report, at page 8, the clinical investigator finds “no significant concerns” regarding the respondent’s ability to care for the children, and recommended (again) that the respondent’s time with the children should increase when the respondent lives near the children’s school – including suggesting a potential schedule where the children would be with the respondent from Tuesday afternoon to Friday morning of week one, and from Friday afternoon to Tuesday morning on week two; in essence this is a “50/50” schedule.

[34] At the conclusion of the trial, the trial judge was aware that the respondent had obtained accommodation near the children’s school as per the suggestion of the OCL clinical investigator reports. The trial judge found, at para. 90, that the respondent has made progress and that the respondent denied having current drug and alcohol issues. The trial judge was aware that counselling would be taking place to repair Jonelle’s relationship with her mother.

[35] In order to provide more context to the trial judge’s reasons, it is important to consider that the trial judge made specific reference to the revised draft order presented by the appellant at trial. The effect of that request was that while the children would reside primarily with the appellant, the parties would co-parent the children, and that when the respondent acquired a residence of her own, with suitable sleeping arrangements for the children, then the respondent would have the children from Wednesday after school to Sunday at 5 p.m. in week one and from Wednesday after school to Friday after school in week two. This is close to “50/50”. I set out para. 73 of the trial judge’s reasons in its entirety dealing with the appellant’s position at trial (where “Applicant” refers to the mother and “Respondent” refers to the father):

[73] He submitted his revised draft order on February 18, 2016 which includes the following with respect to custody and access:

1. Paragraph 1 of Justice Templeton’s Order of March 9, 2012, shall be changed to read that the children shall continue to reside primarily with the Respondent.

2. The Applicant shall have the children in her care and custody as follows:

a. Commencing immediately, alternate weekends from Friday at the conclusion of school, until Sunday at 5:00 p.m.

b. Once Ms. Roebuck has acquired a residence of her own, with suitable sleeping accommodations for each child, then alternate weekends shall extend from Wednesday after school until Sunday at 5:00 p.m.

c. Once Ms. Roebuck has acquired a residence of her own and her care and custody extends in accordance with clause 2(b) above, then she shall also have care and custody of the children from Wednesday after school to Friday after school in the weeks without weekend access.

3. When exchanges do not occur in relation to the conclusion of a school day, they shall take place at Merrymount Children’s Center in London, Ontario or at a location that is mutually agreeable.

4. The Applicant and Respondent shall co-parent the children and shall consult with each other accordingly. Should the parties be unable to come to an agreement on significant issues such as medical, religious or health decisions, then they shall engage the services of a third party mediator and shall share in the cost of same equally.

5. The Applicant and the Respondent will provide each other with the municipal address at which they will be residing with the children. Both parties shall notify the other should they intend to move and neither party shall relocate outside of the County of Middlesex without the consent of the other.

6. The Applicant and Jonelle shall engage in counselling, towards rebuilding their relationship, to be paid for by the Respondent.

7. All three children shall engage in counselling to address any concerns they may have from parental conflict and the breakdown of their parents’ relationship, to be paid for by the Respondent.

8. The Applicant and Respondent shall engage in counselling to learn how to set aside their respective feelings and issues and to understand how to properly co-parent their children and for the Respondent to address anger and stress management, to be paid for by the Respondent.

[36] In his motion, the appellant does not address, nor explain, the fact that he asked the trial judge to make the above order, where his proposed parenting plan was only one day short of the “50/50” schedule ordered by the trial judge. Also noteworthy is that this plan did not seek an order restricting the respondent’s access to Jonelle or making that access subject to Jonelle’s wishes.

[37] But for the fresh evidence, it would be most difficult for the appellant to satisfy the first part of the test, as enunciated in Buccilli, supra, and in Fiala Estate, supra, that the appeal has a reasonable prospect of success. Having said that, the proper analysis in this case requires a consideration of the three-part test considering all the evidence including the fresh evidence.

CONCLUSION

[38] The reality is that the trial judge was not aware of the intervening material facts subsequent to the conclusion of the trial. No motion was brought before the trial judge, prior to the release of her reasons, seeking leave to re-open the trial. In fact, this was what happened in Hughes v. Roy, 2016 ONCJ 65, a decision of S. O’Connell J. of the Ontario Court of Justice, relied on by the appellant, which involved custody and access. In that case, the trial concluded in July 2015; the judgment was reserved to be released in January 2016, but just before the judgment was to be released, urgent motions were brought before S. O’Connell J. to re-open the trial based on new circumstances affecting the father. The court reviewed the relevant authorities, re-opened the trial and allowed evidence to be adduced regarding the father’s changed circumstances that occurred subsequent to the conclusion of the trial.

[39] In the present case, the ground of appeal that relates to the length of time that the judgment was under reserve is, I find, likely to be of dubious merit at best, considering the appellant’s failure to bring a motion to re-open the trial. No persuasive evidence was adduced by the appellant explaining his failure to do so.

[40] It is substantially, if not exclusively, the fresh evidence, I find, that supports the appellant’s motion for a stay. After the trial ended, the respondent’s residence stability deteriorated. She no longer lived near the children’s school. Currently, the respondent is living temporarily in a residence that is completely inadequate for a week-about parenting schedule or even any overnights. The respondent has engaged in erratic behaviour, at times, including missing some access visits without a reasonable explanation. She has failed to provide any medical evidence as to the aetiology of her apparent seizure. On one occasion, the police required the appellant to pick up the children after midnight because they were left alone by the respondent without adult supervision.

[41] It is quite apparent from the affidavit material that this case continues to be high-conflict. There is evidence on the motion that the appellant has failed to comply with some access orders made after he brought his motion; further, the motion material raises a genuine issue that the appellant may have thwarted the respondent’s access pursuant to the interim order while the judgment was under reserve.

[42] Accordingly, when considering also the fresh evidence, I am satisfied that the appeal raises a serious issue, irrespective of whether the test is as described in Mudry, supra, or as described in Buccilli or Fiala Estate, supra.

[43] As to the second and third grounds, I find that if a stay is not granted, that the children may suffer irreparable harm and that the children’s best interests favour a stay. In Barnes v. Parks, 2001 24146 (Ont. C.A.), Laskin J.A., in granting a stay of the trial judgment pending appeal, stated that the “governing principle” is that a stay should be granted if it is in the child’s best interests to do so: para. 2.

[44] Although the therapist’s report filed on the motion raises additional concerns about the relationship between Jonelle and her mother, I am not prepared to leave access, at this time, to Jonelle’s discretion. There has been no cross-examination on the report; also there is an issue as to the weight to be attributed to Jonelle’s wishes, and finally and most importantly, the trial judge did not leave access to Jonelle’s discretion, notwithstanding the clinical investigator’s recommendation to that effect.

[45] I find that it is in the best interests of the children to have regular day-time access with their mother. The order below prevents the respondent from exposing the children to any male partner during access – which was one of Jonelle’s expressed concerns.

[46] The parties are reminded that the trial judgment was comprehensive and included many provisions that are incidental to custody and access and that are not being stayed, including a prohibition preventing the parties from smoking inside or outside their homes, in their vehicles, or in the presence of the children. I emphasize the order regarding smoking because there was some evidence in the motion material that the respondent is smoking during access visits. Also, the parties are reminded that the judgment, para. 17, entitles each party to reasonable telephone contact with the children when they are with the other party.

[47] In relation to child support, the trial judge did find that arrears were owed by the appellant. The sum of $5,000 towards arrears was paid to the Family Responsibility Office in early February 2017 according to the appellant; the respondent confirms having received a little over $3,800 of that amount. It is unclear on the evidence why the entire payment was not received by the respondent.

[48] I am satisfied that the arrears payment made at this time by the appellant was reasonable in the circumstances considering that the appeal includes child support. Given the stay of the week-about parenting plan, the order below includes a stay of any child support payments pending appeal.

POTENTIAL MOTION TO CHANGE

[49] During argument, the court encouraged the parties to consider whether it may be more practical, just and expeditious, to deal with this case as a motion to change, given the fresh evidence. This would require counsel to explore abandoning the appeal, commencing a motion to change, and agreeing to an order containing appropriate directions and terms to implement same.

[50] Without the fresh evidence, the appeal, in my view, is unlikely to succeed. If the appellate court is confronted, as it undoubtedly will be, with motions for leave to file fresh evidence, then the appeal itself will resemble, substantially, a motion to change. The parties are urged, strongly, to give urgent consideration to this issue.

ORDER

[51] I make the following order on the appellant’s motion to stay:

1. In relation to custody and access, paragraphs 4, 5, 6 and 7 of the final order of Korpan J., as amended, dated November 18, 2016 (“the final order”) are stayed pending the hearing of the appeal.

2. In relation to child support, paragraphs 27, 28 and 29 of the final order are stayed pending the hearing of the appeal.

3. Pending the hearing of the appeal:

(a) the children shall be in the care and control of the respondent every Saturday from 11:00 a.m. to 7:00 p.m., and every Wednesday from after school (or from 3:30 p.m. if there is no school) to 7:00 p.m.;

(b) during July and August 2017, the children shall be in the care and control of the respondent every Wednesday and every Saturday from 11:00 a.m. to 7:00 p.m.;

(c) at all other times the children shall be in the care and control of the appellant;

(d) for the respondent’s parenting time, the appellant shall deliver the children to the respondent, and he shall pick up the children from the respondent;

(e) regarding para. (d), all exchanges shall take place at the residence where the respondent is currently staying, 640½ Queens Avenue, London, subject to the following:

(i) the respondent may request the appellant to drop off the children at such other location in the community, within the City of London, so long as the respondent is present to receive the children, and the appellant shall comply with such a request; and

(ii) the appellant shall pick up the children from the same location, unless the respondent requests the appellant to pick up the children from her residence;

(f) the children shall not be left alone without adult supervision;

(g) during her parenting time, the respondent shall not expose or introduce the children to any male partner of the respondent.

4. This order is without prejudice to the respondent’s right, pending the hearing of the appeal, to bring a motion to increase her parenting time, including overnights, if the respondent obtains her own adequate accommodation suitable for herself and the children. If scheduling permits, the trial coordinator shall ensure that such a motion is placed before me.

5. If the parties cannot agree on costs of the motion, then written costs submissions may be forwarded to the trial coordinator, within 30 days, limited to 2 typed pages, double-spaced, plus copies of any offers, bill of costs, lawyer’s bills or authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: March 17, 2017

[^1]: The appeal is to this court for reasons stated at para. 8 of my first endorsement, Lapier v. Roebuck, 2016 ONSC 7960 (Div. Ct.):

The parties were not married to each other. The trial was held in the Family Court of the Superior Court of Justice. The custody/access issues are determined pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). The effect of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and s. 73 of the CLRA, together, require an appeal from a final order of the Family Court to be heard in the Divisional Court: Marchildon v. Beitz, 2012 ONCA 668 (Ont. C.A.) [In Chambers].

[^2]: Ibid, footnote 1.

[^3]: Ibid, footnote 1.

[^4]: Lapier v. Roebuck, 2017 ONSC 395.

[^5]: Ibid, footnote 4.

[^6]: Ibid, footnote 1.